READINGS  IN  AMERICAN 

CONSTITUTIONAL 

HISTORY 

1776 -1876 

EDITED    BY 

ALLEN   JOHNSON 

Professor  of  A  merican  History  in  Yale  University 


7  G    0    ^    BOSTON)  NEW  YORK    CHICAGO 

HOUGHTON    MIFFLIN    COMPANY 
(Ebe  fiitrrsiDc  pre??  ^Tambribge 

62230 


COPYRIGHT,   1912,    BY    ALLEN  JOHNSON 
ALL   RIGHTS    RESERVED 


cop'  5 

PREFACE 

In  preparing  this  collection  of  historical  material  for  pub- 
lication, I  have  had  in  mind  chiefly  the  needs  of  the  average 
undergraduate.  Believing  that  the  so-called  "case  system" 
has  a  distinct  disciplinary  value  and  may  be  applied  profit- 
ably, within  certain  limits,  to  the  study  of  constitutional  his- 
tory, I  have  tested  for  some  years  in  my  classes  a  variety  of 
documents  drawn  from  many  sources.  The  matter  contained 
within  the  covers  of  this  volume  may  be  viewed  as  the  survival 
of  the  fittest.  So  far  as  possible,  a  unity  and  coherence  have 
been  given  to  the  selections  by  careful  grouping  and  by  brief 
introductory  comments. 

The  phrase  ''constitutional  history"  has  been  used  rather 
broadly  to  mean  not  only  the  development  of  Federal  and  State 
Constitutions,  but  also  the  history  of  governmental  processes. 
"  Readings  in  the  history  of  American  polity  "  would  have 
been  a  not  inappropriate  title  for  the  book. 

Formal  documentary  matter  —  such  as  legislative  bills, 
acts,  and  general  statutes  —  has  been  omitted.  Selected 
statutes  are  now  accessible  in  several  collections,  notably  in 
the  excellent  series  edited  by  Professor  William  MacDonald. 
In  conclusion,  I  will  say  that  wherever  a  choice  has  been  pos- 
sible, I  have  selected  material  with  an  eye  to  literary  form  as 
well  as  to  historical  content. 

A.  J. 

Yale  Um\'ERsiTY 
June,  1 91 2 


CONTENTS 


Part  One.   Foundations  of  American  Polity 

Chapter  I.   Colonial  Charters  and  Establishments 

1.  The  Charter  of  Connecticut i 

Connecticut  Colonial  Records,  ii,  3-1 1  passim. 

2.  Defence  of  Charter  Governments         4 

Dummer,  Defence  of  the  Nrw-England  Charters  (1721),  35-39. 

3.  The  Charter  of  Maryland  6 

Thomas  Bacon,  Laws  of  Marylatid  (1765),  passim. 

Chapter  II.  The  Polity  of  a  Royal  Province 

4.  Report  of  Governor  Tryon  on  New  York 10 

O'Callaghan,  Documentary  History  of  the  State  of  New  York,  i,  752- 
S6. 

5.  Report  of  Governor  Gooch  on  Virginia 14 

"  Queries  from  ye  Lds  of  Trade  to  Sr  VVm.  Gooch  Govr  of  Virginia 
&  his  Answers  Abridged,"  in  Virginia  Magazine  of  History,  in, 
114-17. 

Chapter  III.    The  Powers  of  a  Royal  Governor 

6.  Commission  of  Francis  Bernard  as  Governor  of  New  Jersey   .     18 

Ricord  and  Nelson,  Documents  relating  to  the  Colonial  History  of  the 
State  of  New  Jersey,  ix,  23-34  passim. 

7.  Instructions  to  Governor  Bernard  of  New  Jersey     ...     22 

Ricord  and  Nelson,  Documents  relating  to  the  Colonial  History  of  the 
State  of  Neiv  Jersey,  ix,  40-77  passim. 

Chapter  IV.  Royal  Governor  and  Representative  Assembly 

8.  The  Points  at  Issue  between  the  Colonies  and  the  Crown  .     26 

Pownall,  Adininislration  of  the  Colonies  (1765),  39-47  passim. 

g.  "Every  Proprietary  Governor  has  Two  Masters"      ...    30 
Franklin,  An  Historical  Review  of  the  Constitution  and  Government 
of  Pennsylvania,  -ji-tt,. 

10.  The  Power  of  the  Purse 31 

Pownall,  Administration  of  the  Colonies  (1765),  50-53. 

Chapter  V.  The  Union  of  the  American  Colonies 

11.  Credentials  of  the  Massachusetts  Delegates  to  the  First 

Continental  Congress 34 

Journals  of  the  Continental  Congress  (Ford  ed.),  i,  15-16. 


vi  CONTENTS 

12.  The  Association 35 

Journals  of  the  Continental  Congress  (Ford  ed.),  i,  75-8o. 

13.  Resolutions  of  the  Second  Continental  Congress       ...    40 

Journals  oj the  Continental  Congress  (Ford  ed.),  n,  79,  83-84,  89,  Qi- 

Chapter  VI.  Political  Doctrines  of  the  Revolutionary  Era 

14.  John  Locke  on  the  Dissolution  of  Governments         .      .      .43 

Locke,  Two  Treatises  of  Government  (Morley's  Universal  Library), 
222,  225. 

15.  The  Revolution  in  New  Hampshire 44 

Thorpe,  Federal  and  State  Constitutions,  iv,  2451-53. 

16.  The  Declaration  of  Independence         46 

Revised  Statutes  of  the  United  States  (1878),  3-5. 

17.  Massachusetts  Declaration  of  Rights 48 

Thorpe,  Federal  and  State  Constitutions,  in,  1888-93. 

Part  Two.   The  Formation  of  State  and  Federal 
Constitutions 

Chapter  VII.  Principles  of  Representative  Government 

18.  Distinction  between  Democracies  and  Republics         •      •      •    55 

Federalist  (Ford  ed.).  No.  10  passim. 

19.  The  Nature  of  Representation 56 

Federalist  (Ford  ed.),  Nos.  35  and  36  passim. 

20.  Doctrine  of  the  Separation  of  Powers 59 

Federalist  (Ford  ed.).  No.  47  passim. 

21.  Checks  and  Balances 61 

Federalist  (Ford  ed.).  No.  51. 

Chapter  VIII.    State  Constitutions  of  the  Revolutionary  Era 

22.  Transition  from  Colony  to  Commonwealth  in  Connecticut    .     63 

Poore,  Charters  and  Constitutions,  i,  257. 

23.  Constitution  of  New  Jersey,  1776 64 

Thorpe,  Federal  and  State  Constitutions,  v,  2594-98. 

24.  Constitution  of  Virginia,  1776 68 

Thorpe,  Federal  and  State  Constitutions,  vii,  3815-19. 

Chapter  IX.  The  First  Federal  Constitution 

25.  The  Articles  of  Confederation 74 

Revised  Statutes  of  the  United  States  (1878),  7-11. 

Chapter  X.  Defects  of  the  Confederation 

26.  Dependence  of  the  Confederation  on  the  State  Govt:rnments    .    84 

Federalist  (Ford  ed.).  No.  15,  90-95. 

27.  Specific  Defects  of  the  Confederation 88 

Federalist  (Ford  ed.),  No.  21,  124-129. 


r 

CONTENTS  vli 

Chapter  XI.  Origin  of  the  Federal  Convention 

28.  Antecedents  of  the  Annapolis  Convention         ....  93 

James  Madison,  Preface  to  Debates  in  the  Convention  of  1787,  in 
Farrand's  Records  of  the  Federal  Convention,  iii,  543-45. 

29.  Report  of  the  Annapolis  Convention 96 

Elliot,  Debates  in  the  Several  State  Conventions  on  the  Adoption  of  the 
Federal  Constitution  (1866),  i,  11 7-18. 

30.  Call  for  the  Constitutional  Convention 98 

Elliot,  Debates,  i,  120. 

31.  Difficulties  encountered  by  the  Convention         ....    99 

Federalist  (Ford  ed.),  No.  37  passim. 

Chapter  XII.  The  Constitutional  Convention  of  1787 

32.  Opening  Session  of  the  Convention 102 

Journal,  in  Farrand's  Records  of  the  Federal  Convention,  i,  1-2. 

SS-  The  Randolph  Resolutions 104 

Farrand,  Records  of  the  Federal  Convention,  1,  20-22 

34.  The  Paterson  Resolutions 107 

Farrand,  Records  of  the  Federal  Convention,  i,  242-45. 

35.  The  Great  Compromise no 

Farrand,  Records  of  the  Federal  Convention,  i,  522-23. 

Chapter  XIII.  The  Constitution  of  the  United  States 

36.  The  Constitution  as  adopted 112 

Revised  Statutes  of  the  United  States  (1878),  17-27. 

Chapter  XI \'.  The  Ratification  of  the  Constitution 

37.  Transmission  of  the  New  Constitution  to  Congress   .      .      .126 

Elliot,  Debates,  v,  541. 

38.  Ratification  of  the  Constitution  by  the  State  of  Georgia   .127 

Elliot,  Debates,  i,  323-24. 

39.  The  Constitution  —  National  or  Federal? 128 

Federalist  (Ford  ed.).  No.  38,  245-52  passim. 

Chapter  XV.  The  First  Amendments  to  the  Constitution 

40.  A  Proposal  to  amend  the  New  Constitution 135 

Annals  of  Congress,  i  Cong.,  i  Sess.,  449-57  passim. 

41.  Resolution  of  Congress  for  the  Amendment  of  the  Constitu- 

tion      138 

Elliot,  Debates,  i,  338. 

42.  The  First  Ten  A.mendments 138 

Revised  Statutes  of  the  United  States  (1878),  28-30. 

43.  Chisholm  v.  Georgia 140 

2  Dallas,  419. 

44.  The  Eleventh  Amendment 142 

Revised  Statutes  of  the  United  States  (1878),  30. 


viii  CONTENTS 

Chapter  XVI.  The  Government  of  Federal  Territories 

45.  The  Ordinance  of  1787  for  the  Northwest  Territory      .      .  i43 

Revised  Statutes  of  the  United  States  (1878),  13-16. 

Part  Three.  The  Establishment  of  the  Federal 
Government 

Chapter  XVII.  President  and  Congress 

46.  The  Inauguration  of  President  Washington 151 

Maclay,  Journal  of  William  Maclay,  7-9. 

47.  The  PREsroENT's  Speech  and  th7.  Address  of  the  House   .      .154 

Atwals  of  Congress,  2  Cong.,  i  Sess.,  143-47  passim. 

48.  Origin  of  the  First  Veto  Message 15  7 

Writings  of  Thomas  Jefferson  (Ford  ed.),  i,  192. 

49.  The  Veto  Message  in  the  House     .      .      .     _ i57 

Annals  of  Congress,  2  Cong.,  i  Sess.,  539-41  passim. 

50.  President  Jefferson's  Innovation i59 

Richardson,  Messages  and  Papers  of  the  Presidents,  i,  325. 

Chapter  XVIII.  The  Senate  as  an  Executive  Council 

51.  CONSroERATIONS  ON  THE  TlME,  PlACE,  AND  MANNER  OF  CONSULTA- 

TIONS      160 

Writings  of  George  Washington  (Ford  ed.),  xi,  418-19. 

52.  How  THE  President  shall  be  received  in  the  Senate        .      .  161 

Writings  of  George  Washington  (Ford  ed.),  xi,  419  7iote. 

53.  President  ant)  Senate  in  Executive  Session 162 

Maclay,  Journal  of  William  Maclay,  123-33  passim. 

Chapter  XIX.    The  Appointing  and   Removing   Power   oe  the 

President 

54.  Debate  on  the  Establishment  of  a  Secretaryship  of  Foreign 

Affairs 168 

Annals  of  Congress,  i  Cong.,  i  Sess.,  473-521  passim. 

Chapter  XX.  Congress  and  the  Treasury  Department 

55.  Debate  on  the  Establishment  of  a  Secretaryship  of  Treas- 

ury      178 

Annals  of  Congress,  1  Cong.,  i  Sess.,  616-31  passim. 

56.  Power  of  the  House  over  Heads  of  Departments       .      .      .  184 

Writings  of  Jefferson  (Ford  ed.),  i,  189-90. 

57.  Reports  of  the  Secretary  of  Treasury 186 

Henry  Adams,  Writitigs  of  Albert  Gallatin,  i,  66-67. 

Chapter  XXI.  The  Whiskey  Insurrection 

58.  Proclamation  of  August  7,  1794 188 

Richardson,  Messages  and  Papers  of  the  Presidents,  i,  158-60. 


CONTENTS  Ix 

59.  Proclamation  of  September  25,  1794 iqi 

Richardson,  op.  cil.,  i,  161-62. 

60.  Instructions  to  Governor  Lee 193 

Brackenridge,  History  of  the  Western  Insurrection,  283-85. 

Chapter  XXII.  The  Part  of  the  House  in  Treaty-Making 

61.  Debate  in  the  House  of  Representatives  on  the  Jay  Treaty      197 

Annals  of  Congress,  4  Cong.,  i  Sess.,  426-772  passim. 

Chapter  XXIII.    Organization  and  Procedure  or  the  House  of 

Representatives 

62.  The  Opening  of  a  Session 206 

Annals  of  Congress,  7  Cong.,  i  Sess.  (1801),  309-11. 

63.  Rules  and  Orders  of  the  House  of  Representatives        .       .  208 

Annals  of  Congress,  7  Cong.,  i  Sess.  (1801),  409-15. 

64.  Beginnings  of  the  Committee  System 213 

Works  of  Hamilton  (Hamilton  ed.),  vi,  201-02. 

Chapter  XXIV.  The  Origin  of  the  Twelfth  Amendment 

65.  The  Election  of  1801 214 

Works  of  Hamilton  (Hamilton  ed.),  vi,  506-07;  522-24. 

66.  Debate  in  the  Senate  on  the  Proposed  Amendment    .       .       .216 

Annals  of  Congress,  8  Cong.,  i  Sess.  (1803),  141-84  passim. 

67.  The  Twelfth  Amendment 223 

Revised  Statutes  of  the  United  States  (1878),  30. 


Part  Four.   The  Development  of  National  Sovereignty 

Chapter  XXV.   The  Federal  Compact  and  the  Doctrine  of 
Strict  Construction 

68.  Jefferson  on  the  Constitutionality  of  a  National  Bank       .  225 

Writings  of  Jejfersorp  (Ford  ed.),  v,  285-87. 

69.  Kentucky  Resolutions  of  1798 228 

Shaler,  Kentucky,  in  the  American  Commonwealths  Series,  409-16. 

70.  Kentucky  Resolutions  of  1799 235 

Elliot,  Debates,  iv,  570-72. 

Chapter  XXVI.    The  Power  to  acquire  Territory  and  to 
GOVERN  Acquired  Territory 

71.  Jefferson  on  the  Purchase  of  Louisiana 237 

Writings  of  Jefferson  (Washington  ed.),  iv,  500-01. 

72.  Senator  Taylor  on  the  Louisiana  Treaty 237 

Annals  of  Congress,  8  Cong.,  i  Sess.,  49-52. 

73.  The  American  Insurance  Company  v.  Canter 241 

I  Peters,  511. 


X  CONTENTS 

74.  Power  of  Congress  over  Acquired  Territory    .   .   •   .243 

Annals  of  Congress,  8  Cong.,  i  Sess.,  49-S2. 

75.  SERi:  et  al.  v.  Pitot  d  al 244 

6  Cranch,  332. 

76.  New  Orleans  v.  Winter  et  al 245 

I  Wheaton,  91. 

Chapter  XXVII.  The  Power  of  the  Federal  Judiciary  to  de- 
clare Acts  of  Congress  Void 

77.  Marbury  v.  Madison 246 

I  Cranch,  137. 

78.  Jefferson  on  the  Usurpation  of  the  Federal  Judiciary   .      .252 

Writings  of  Jcjerson  (Washington  ed.),  vii,  134-35- 

Chapter  XXVIII.  Pennsylvanla  and  the  Federal  Judiclary 

79.  United  States  v.  Judge  Peters 254 

5  Cranch,  135. 

80.  Resolutions  of  the  Legislature  of  Pennsylvania       _.      .      .  260 

Annals  of  Congress,  11  Cong.,  2  Sess.,  App.,  2253-69  passim. 

Chapter  XXIX.  Nullification  in  New  England 

81.  Secretary  of  War  to  the  Governor  of  Connecticut         .      .  263 

American  Register  (1809),  177-78. 

82.  The  Governor  of  Connecticut  to  the  Secretary  of  War       .  264 

American  Register  (1809),  178-79. 

83.  Resolutions  of  the  General  Assembly  of  Connecticut     .      .  266 

American  Register  (1809),  180-81. 

84.  The  Governor  of  Massachusetts  to  the  Secretary  of  War  .  268 

Senate  Documents,  13  Cong.,  3  Sess.,  Report  of  the  Committee  on 
Military  Affairs,  34-48. 

85.  Opinion  of  the  Judges  of  the  Supreme  Court  of  Massachusetts  269 

Senate  Documents,  13  Cong.,  3  Sess.,  Report  of  lite  Committee  on 
Military  Affairs,  38-42. 

86.  Martin  v.  Mott 271 

12  Wheaton,  19. 

Chapter  XXX.    The  Doctrine  of  Liberal  Construction  of  the 

Constitution 

87.  M'CuLLOCH  V.  Maryland  et  al.- 273 

4  Wheaton,  316. 

Chapter  XXXI.    Jurisdiction  of  the  Supreme  Court  over  State 

Courts 

88.  Martin,  Heir  at  Law  and  Devisee  of  Fairfax,  v.  Hunter's 

Lessee 283 

I  Wheaton,  304. 


CONTENTS  xl 


Cohens  v.  The  State  of  Virginia 
6  Wheaton,  264. 


287 


Chapter  XXXII.     Constructive  Judicial  Interpretation  of  the 

Constitution 

90.  Gibbons  v.  Ogden 201 

9  Wheaton,  i. 

Part  Five.   National  Sovereignty  v.  State  Rights 

Chapter  XXXIII.  The  Admission  of  New  States 

91.  Representative  Taylor  on  the  Admission  of  Missouri      .      .  299 

Annals  of  Congress,  15  Cong.,  2  Sess.,  11 71-74  passim. 

92.  Representative  McLane  on  the  Admission  of  Missouri     .      .  302 

Annals  of  Congress,  16  Cong.,  i  Sess.,  1141-60  passim. 

93.  Senator  Pinkney  on  the  Admission  of  Missouri     .      .      .      .305 

Annals  of  Congress,  16  Cong.,  i  Sess.,  397-99  passim. 

Chapter  XXXIV.  Nullification  in  Georgia 

94.  Georgia  and  the  Lands  of  the  Creeks  and  Cherokees     .      .308 

Acts  of  Georgia  (1827),  248. 

95.  Legislature  of  Georgu  on  the  Case  of  George  Tassels.      .  309 

Acts  of  Georgia  (1830),  282. 

96.  The  Cherokee  Nation  v.  The  State  of  Georgu     .      .      .      .310 

5  Peters,  i. 

97.  Worcester  v.  The  State  of  Georgia      .      .      .'     .      .      .      ,312 

6  Peters,  515. 

Chapter  XXXV.  The  Doctrine  of  Nullification 

98.  The  South  Carolina  Exposition 317 

Works  of  John  C.  Calhoun  (Cralle  ed.),  vi,  36-51  passim. 

99.  Report  for  a  Committee  of  the  South  Carolina  Legislature  322 

Works  of  Calhoun  (Cralle  ed.),  vi,  111-12. 

100.  The  Fort  Hill  Letter  on  State  Interposition       .      .      .      .323 
Works  of  Calhoun  (Cralle  ed.),  vi,  147-69  passim. 

Chapter  XXX VI.  Nullification  in  South  Carolina 

loi.  South  Carolina  Ordinance  of  Nullification 326 

Senate  Documents,  No.  30,  22  Cong.,  2  Sess.,  36-38. 

102.  President  Jackson's  Proclamation  to  the  People  of  South 

Carolina ,29 

Ri-hardson,  Messages  and  Papers  of  the  Presidents,  11,  641-52  passim. 

Chapter  XXXVII.  The  Nature  of  the  Union 

103.  The  Federal  Compact  a  Binding  Obligation" 335 

Richardson,  Messages  and  Papers  of  the  Presidents,  11,  648-50  passim. 


xii  CONTENTS 

lOA   Webster's  Reply  to  Hayne  of  South  Carolina 337 

Works  of  Daniel  Webster  (1851) ,  ni,  270-342  passim. 

Chapter  XXXVIII.  Federal  Control  of  State  Governments 

105.  President  Tyler  to  the  Governor  of  Rhode  Island  .      .  344 

Broadside  in  Yale  University  Library. 

106.  Memorial  of  the  Democratic  Members  of  the  Legislature  of 

Rhode  Islant) 345 

House  Reports,  No.  546.  28  Cong.,  i  Sess. 


107.  Luther  v.  Borden 
7  Howard,  i. 


348 


Part  Six.  The  New  Democracy 

Chapter  XXXIX.  The  Basis  of  the  New  Democracy 

108.  Social  Conditions  and  their  Political  Consequences         .       .353 

De  Tocqueville,  Democracy  in  America  (i2ti3  ed.),  i,  63-67  passim. 

109.  Sovereignty  of  the  People 355 

De  Tocqueville,  op.  cil.,  1,  69-72  passim. 

no.  Chancellor  Kent  on  Universal  Suffrage 35 6 

New  York  Convention  of  1821,  Reports  of  tJte  Proceedings  and  De- 
bates, 219-22  passim. 

111.  Property  not  the  True  Basis  of  Representation         .       .       .  360 

New'  York  Convention  of  1821,  Reports  of  the  Proceedings  and  De- 
bates, 241-44  passim. 

Chapter  XL.  Constitutional  Changes  in  the  States 

112.  Veto  Power  of  the  Governor 363 

New  York  Convention  of  182 1,  Reports  of  the  Proceedings  and  De- 
bates, 52-53- 

113.  The  Governor  as  "the  Man  of  the  People" 365 

New  York  Convention  of  1821,  Reports  of  the  Proceedings  and  De- 
bates, 60-61. 

114.  Political  Power  of  the  Judiciary 366 

De  Tocqueville,  Democracy  in  America  (12th  ed.),  i,  125-30. 

1x5.  Popular  Election  of  the  Judiciary 367 

Debates  and  Proceedings  of  the  Maryland  Reform  Convention  (1851), 
II,  461-64  passim. 

Chapter  XLI.  President  and  Congress:  the  Veto  Power 

116.  President  Jackson's  Bank  Veto 370 

Richardson ,  Messages  attd  Papers  of  the  Presidents,  11,  576-91  passim. 

117.  Henry  Clay  on  the  Veto  Power 375 

Mallory,  Life  and  Speeches  of  Henry  Clay,  11,  519-28  passim. 

118.  President  Polk  on  the  Exercise  of  the  Veto  Power   .   .378 

Richardson,  Messages  and  Papers  of  the  Presidents,  iv,  662-65  passim. 


CONTENTS  xiii 

Chapter  XLII.    The  President  as  the  Direct  Representative 
OF  THE  People 

119.  President  Jackson's  Paper  read  to  the  Cabinet    ....  380 

Niles's  Register,  XLV,  73-77  passim. 

120.  President  Jackson's  "Protest" 384 

Richardson,  Messages  and  Papers  of  the  Presidents,  iii,  69-93. 

121.  Senator  Webster  on  the  "Protest" 380 

Works  of  Webster  (1851),  iv,  136-45  passim. 

Chapter  XLIII.    Presidential  Initiative  in  determining 
Foreign  Policy 

122.  President  Polk's  War  Message 393 

Richardson,  Messages  and  Papers  of  the  Presidents,  iv,  437-43  passim. 

123.  A  Whig  View  of  the  Origin  of  the  War 397 

Cleveland,  Alexander  H.  Stephens,  304-16  passim. 

124.  Prestoent  Polk  to  Congress 399 

Richardson,  Messages  and  Papers  of  the  Presidents,  iv,  536-38. 

125.  President  Polk  to  the  House  of  Representatives       .       .       .  402 

Richardson,  Messages  and  Papers  of  the  Presidents,  iv,  594-96  passim. 

126.  President  Polk  to  Congress 404 

Richardson,  Messages  and  Papers  of  the  Presidents,  iv,  638. 


Part  Seven.   Slavery  and  the  Constitution 

Chapter  XLIV.  Slavery  in  the  Territories 

127.  The  Wilmot  Proviso 405 

Congressional  Globe,  August  8,  1846. 

128.  The  Rhett-Calhoun  Doctrine 406 

Congressional  Globe,  29  Cong.,  2  Sess.,  App.,  244-46  passim. 

129.  The  Law  of  the  Acquired  Territories 408 

Congressional  Globe,  30  Cong.,  i  Sess.,  App.,  1104-06  passitn. 

130.  "Squatter  Sovereignty" 411 

Niles's  Register,  lxxiii,  293-94. 

131.  The  Territorial  Acts  of  1850  for  Utah  and  New  Mexico      .  414 

Report   of  the  Committee   on   Territories,  Senate   Reports,  No.    15, 
S3  Cong.,  I  Sess.,  January  4,  1854. 

Chapter  XLV.  The  Rendition  of  Fugitive  Slaves 

132.  Prigg  v.  Pennsylvania 416 

16  Peters,  539. 

133.  Report  of  the  Legislature  of  Virginia,  1849 421 

Acts  of  Virgittia,  1849-50,  240-54  passim. 

134.  Opinion  of  the  .A.ttorney-General  on  the  Fugitive  Slave  Law 

OF  1850 423 

Executive  Documents,  31  Cong.,  2  Sess.,  2099-2102  passim. 


XIV  CONTENTS 

Chapter  XL VI.  The  Doctrine  of  Popular  Sovereignty 

135.  Report  of  the  Senate  Committee  on  Territories,  1854  .  .  426 
Senate  Reports,  No.  15,  Z2>  Cong.,  i  Sess.,  January  4,  1854. 

136  Senator  Everett  on  the  Principle  of  the  Legislation  of  1850  43° 
Congressional  Globe,  3,2,  Cong.,  i  Sess.,  App.,  160-62  passim. 

137.  Senator  Douglas  on  the  Principle  of  Popular  Sovereignty  .  433 

Congressional  Globe,  zz  Cong.,  i  Sess.,  App.,  326-37  passim. 

Chapter  XLVII.  Dred  Scott  v.  Sandford 

138.  Dred  Scott,  Plaintiff  in  Error,  v.  John  F.  A.  Sandford  .      .  436 

19  Howard,  393. 

Chapter  XL VIII.    Popular  Sovereignty  and  the  Dred  Scott 

Decision 

139.  The  Freeport  Doctrine         446 

Lincoln-Douglas  Debates  0}  1858  (Sparks  ed.),  161-62. 

140.  Lincoln's  Reply  at  Jonesboro 447 

Lincoln-Douglas  Debates  of  iSjS  (Sparks  ed.),  242-45. 

T41.  Douglas's  Rejoinder  at  Jonesboro         45° 

Lincoln-Douglas  Debates  of  18 j8  (Sparks  ed.),  258. 

142.  Speech  of  Lincoln  at  Columbus,  Ohio 451 

Political  Debates  between  Lincoln  and  Douglas  (Columbus,  i860), 
250-51  passim. 

Chapter  XLIX.  Secession  and  Coercion 

143.  Opinion  of  the  Attorney-General  upon  the  Powers  of  the 

President 454 

McPherson,  Political  History  of  the  United  States  during  the  Great 
Rebellion,  51-52. 

144.  President  Buchanan's  Message  of  December  3,  i860         .       .  455 

Richardson,  Messages  and  Papers  of  the  Presidents,  v,  630-36  passim. 

145.  South  Carolina  Declaration  of  Causes 459 

Moore,  Rebellion  Record,  i,  3-4,  passim. 

146.  Dissolution  of  the  Partnership 462 

Davis,  Rise  and  Fall  of  the  Confederate  Government,  i,  209-14  passim. 


Part  Eight.  The  Constitution  in  the  Civil  War 

Chapter  L.  The  Nature  of  the  War 

147.  President  Lincoln's  Inaugural  Address 464 

Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  7-8. 

148.  The  Call  to  Arms 466 

Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  13. 

149.  Proclamation  of  Blockade 467 

Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  14. 


CONTENTS  XV 

150.  President  Lincoln's  Message  of  July  4,  1861         ....  468 

Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  24-28  passim. 

151.  Proclamation  of  War ^^i 

Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  37-38. 

152.  The  Prize  Cases         472 

2  Black,  635. 

Chapter  LI.  Presidential  Dictatorship 

153.  Ex  parte  John  Merryman  474 

McPherson,  Political  History  of  the  United  States  during  the  Great 
Rebellion,  155-56. 

154.  Opinion  of  Attorney-General  Bates 478 

McPherson,  Political  History  of  tfie  United  States  during  the  Great 
Rebellion,  159-61  passim. 

Chapter  LII.  The  War  Power  and  Civil  Rights 

155.  Senator  Collamer  on  Confiscation  of  Rebel  Property    .      .  483 

Congressional  Globe,  37  Cong.,  2  Sess.,  1809-10  passim. 

156.  Senator  Sumner  on  the  Rights  of  War 486 

Congressional  Globe,  37  Cong.,  2  Sess.,  2963-64  passim. 

157.  Representative  Thomas  on  Confiscation 488 

Congressional  Globe,  37  Cong.,  2  Sess.,  App.,  219-20  passim. 

Chapter  LIU.  Martial  Law  and  the  Constitution 

158.  Power  of  Congress  to  create  a  Dictator 491 

Congressional  Globe,  37  Cong.,  2  Sess.,  ^^o^pnssim. 

159.  "The  Executive  Power" 493 

Benjamin  R.  Curtis,  The  Executive  Power  (1862),  passim. 

160.  Ex  parte  Milligan 495 

4  Wallace,  2. 

Chapter  LIV.  Emancipation 

161.  Contraband  of  War         500 

McPherson,  Political  History  of  the  United  States  during  the  Great 
Rebellion,  245. 

162.  Forfeiture  of  Slaves 501 

Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  85-86. 

163.  Power  of  the  President  to  emancipate  Slaves       ....  503 

Whiting,  War  Powers  of  the  President  (1862),  66-68  passim. 

164.  Emancipation  Proclamation 504 

United  States  Statutes  at  Large,  xii,  1268-69. 

165.  Resolution  of  Congress  freeing  Soldiers'  Families     .      .      .  506 

United  States  Statutes  at  Large,  xiii,  571. 

166.  The  Thirteenth  Amendment 506 

Revised  Statutes  of  the  United  States  (1878),  30. 

167.  Judicial  Interpretation  of  the  Thirteenth  Amendment    .      .  506 

Slaughter-House  Cases,  16  Wallace,  36. 


xvi  CONTENTS 

Part  Nine.   The  Reconstruction  of  the  Union 

Chapter  LV.  Presidential  Restoration 

i68  President  Lincoln's  Proclamation  of  Amnesty  .  .  •  •  50Q 
Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  213-15. 

160.  Last  Speech  OF  President  Lincoln    ■     •      •      •      •      •      •      -512 

Complete  Works  of  Lincdln  (Nicolay  and  Hay),  n,  672. 

170  Appointment  of  a  Provisional  Governor  for  North  Carolina  512 

Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  312-14. 

171  First  Annual  Message  of  President  Johnson         .      .      •       •  5^5 

Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  353-58  passim. 

Chapter  LVI.  Origin  of  the  Fourteenth  Amendment 

172.  Report  of  the  Joint  Committee  on  Reconstruction     .      .      .518 

Report  of  lite  Joint  Committee  on  Reconstruction,  39  Cong.,  i  bess. 
(1866),  pp.  xiii-xxi  passim. 

173.  Representative  Bingham  on  the  Joint  Resolution       .      .      .520 

Congressional  Globe,  39  Cong.,  i  Sess.,  2542-43  passim. 

174.  Senator  Howard  on  the  Joint  Resolution        .      .      .      .      .523 

Congressional  Globe,  39  Cong.,  i  Sess.,  2765-66  passim. 

175.  The  Fourteenth  Amendment S26 

Revised  Statutes  of  Ike  United  States  (1878),  31. 

Chapter  LVIL    Theories  as  to  the  Status  of  the  States 

176.  The  State-Suicide'Theory  of  Charles  Sumner        .      .      .      .528 

Atlantic  Monthly,  xii,  518-26  passim. 

177.  The  Conquered-Province  Theory  of  Thaddeus  Stevens    .      .  530 

Congressional  Globe,  39  Cong.,  i  Sess.,  72. 

178.  The  Doctrine  of  Forfeited  Rights 532 

Report  of  the  Joint  Committee  on  Reconstruction,  39  Cong.,  i  Sess. 
(1866),  pp.  viii-xii  passim. 

179.  The  Supreme  Court  on  the  Status  of  the  States   .   .   .535 

Texas  v.  White,  7  Wallace,  700. 

Chapter  L\1II.  Congressional  Reconstruction 

180.  Veto  Message  of  March  2,  1867       .      .      .   _  .      .       .      •         538 

Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  498-507 
passim. 

181.  Veto  Message  of  March  23,  1867 •  54i 

Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  531-34  passim. 

182.  Veto  Message  of  July  19,  1867 543 

Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  537-44  passim. 

Chapter  LIX.    The  Supreme  Court  and  Reconstruction 

183.  State  of  Mississippi  v.  .Antjrew  Johnson,  President     .      .      .  547 

4  Wallace,  475. 


CONTENTS  xvli 

184.  State  of  Texas  v.  White 55° 

7  Wallace,  700. 

Chapter  LX.  The  Impeachment  of  President  Johnson 

185.  Opinion  of  Senator  Wilson 553 

Trial  0 J  Andrew  Johnson,  in,  215-16. 

186.  Opinion  of  Senator  Fessenden 555 

Trial  of  Andrew  Johnson,  in,  29-30. 

187.  Opinion  of  Senator  Grimes 557 

Trial  of  Andrew  Johnson,  in,  331-38  passim. 

Chapter  LXI.  Judicial  Interpretation  of  the  Fourteenth 

Amendment 

iSS.  The  Slaughter-House  Cases 5^2 

16  Wallace,  36. 

Chapter  LXII.  The  Fifteenth  Amendment 

i8q.  Representative    Shellabarger    on    the    Proposed    Fifteenth 

Amendment 572 

Congressional  Globe,  40  Cong.,  3  Sess.,  App.,  98. 

190.  Senator  Doolittle  on  the  Proposed  Fifteenth  Amendment    .  574 

Congressional  Globe,  40  Cong.,  3  Sess.,  App.,  151. 

191.  The  Fifteenth  Amendment 5/6 

Revised  Staliiies  of  the  United  States  (1878),  32. 

:92.  Judicial  Interpretation  of  the  Fifteenth  Amendment       .      .  576 
United  States  v.  Reese,  92  U.S.,  214. 
United  States  v.  Cruikshank,  92  U.S.  542. 

Index 579 


PART   ONE.    FOUNDATIONS  OF  AMERICAN 

POLITY 

CHAPTER  I 

COLONIAL  CHARTERS  AND    ESTABLISHMENTS 

At  the  outbreak  of  the  Revolution  there  were  two  types  of  colonial 
establishment  in  British  North  America:  the  province  and  the  corporate 
colony.  Of  the  latter  only  Connecticut  and  Rhode  Island  survived  the 
repeated  attacks  of  the  royal  government.  Both  had  received  charters 
from  King  Charles  Second,  creating  them  corporations  on  the  place. 
A  happy  combination  of  circumstances  had  secured  legal  recognition 
of  the  governmental  organizations  already  existing.  Both  colonies,  there- 
fore, could  continue  their  development  as  self-governing  communities, 
with  practically  no  interference  from  the  Crown.  Extracts  from  the  Con- 
necticut charter  indicate  the  nature  of  the  government.  There  were  two 
kinds  of  provinces:  the  proprietary  and  the  royal.  The  charter  given  to 
Lord  Baltimore  is  an  example  of  the  proprietary  grant.  A  royal  province 
may  be  defined  as  one  in  which  the  King  is  his  own  proprietor,  retaining 
both  governmental  and  territorial  powers.  Maryland  and  Pennsylvania 
with  Delaware  were  the  only  proprietary  provinces  left  after  the  middle 
of  the  eighteenth  century.  New  Hampshire,  New  York,  New  Jersey,  the 
Carolinas,  and  Georgia  had  reverted  to  the  Crown  and  become  royal 
provinces. 

I.  The  Charter  of  Connecticut  — 1062} 

Charles  the  Second,  [&c.]  Whereas,  .  .  .  We  have  byn 
informed  by  the  humble  Petition  of  our  Trusty  and  welbe- 
loved  John  Winthrop,  [and  others]  .  .  .  that  the  same  Colony 
or  the  greatest  parte  thereof  was  purchased  and  obteyned  for 
greate  and  valuable  considerations.  And  some  other  parte 
thereof  gained  by  Conquest  and  with  much  difficulty,  and  att 
the  onely  endeavours,  expence  and  Charge  of  them  and  their 
Associates,  and  those  under  whome  they  Clayme,  Subdued 
*  Connecticut  Colonial  Records,  11,  3-1 1. 


2    FOUNDATIONS  OF  AMERICAN  POLITY 

and  improved,  and  thereby  become  a  considerable  enlargement 
and  addition  of  our  Dominions  and  interest  there,  —  NOW 
KNOW  YEA,  that  .  .  .  WEE  HAVE  thought  fitt  .  .  .  to 
Create  and  Make  them  a  Body  Pollitique  and  Corporate,  with 
the  powers  and  Priviledges  herein  after  mentioned;   And 
accordingly  WEE  ...  by  theis  presents  .  .  .  DOE  Ordeine, 
Constitute  and  Declare  That  they,  the  said  John  Winthrop 
[and  others]  .  .  .,  and  all  such  others  as  now  are  or 
hereafter  shall  bee  Admitted  and  made  free  of  the  Company 
and  Society  of  our  Collony  of  Conecticut  in  America,  shall  .  .  . 
bee  one  Body  Corporate  and  Pollitique  in  fact  and  name,  by  the 
Name  of  Governour  and  Company  of  the  English  Collony  of 
Conecticut  in  New  England  in  America;  .  .  .  AND  further, 
wee  .  .  .  DOE  Declare  and  appoint,   that   for   the   better 
ordering  and  manageing  of  the  affaires  and  businesse  of  the 
said  Company  and  their  Sucessors,  there  shall  be  one  Govern- 
our, one  Deputy  Governour  and  Twelve  Assistants,  to  bee 
from  tyme  to  tyme  Constituted,  Elected  and  Chosen  out  of 
the  Freemen  of  the  said  Company  for  the  tyme  being,  in  such 
manner  and  forme  as  hereafter  in  these  presents  is  expressed ; 
which  said  Officers  shall  apply  themselves  to  take  care  for  the 
best  disposeing  and  Ordering  of   the  Generall   busines   and 
affaires  of  and  concerning  the  lands  and  hereditaments  herein 
after  mentioned  to  bee  graunted,  and  the  Plantation  thereof 
and  the  Government  of  the  People  thereof.   And  .  .  .  WEE 
DOE  .  .  .  Constitute  and  appoint  the  aforesaid  John  Win- 
throp to  bee  the  first  and  present  Governour  of  the  said  Com- 
pany; And  the  said  John  Mason  to  bee  the  Deputy  Governour; 
And  the  said  Samuell  Willis,  [and  others]  ...  to  bee  the 
Twelve  present  Assistants  of  the  said  Company;  to  contynue 
in  the  said  severall  Offices  respectively  untill  the  second  Thurs- 
day which  shall  bee  in  the  Moneth  of  October  now  next  come- 
ing.   AND  further,  wee  .  .  .  DOE  Ordaine  and  Graunt  that 
the  Governour  of  the  said  Company  for  the  tyme  being,  or,  in 
his  absence  by  occasion  of  sicknes,  or  otherwise  by  his  leave  or 
permission,  the  Deputy  Governour  for  the  tyme  being,  shall 
and  may  from  tyme  to  tyme  upon  all  occasions  give  Order  for 


CHARTERS  AND  ESTABLISHMENTS       3 

the  assembling  of  the  said  Company  and  calHng  them  together 
to  Consult  and  advise  of  the  businesse  and  Affaires  of  the  said 
Company,  And  that  for  ever  hereafter,  Twice  in  every  yeare, 
(That  is  to  say,)  on  every  second  Thursday  in  October  and  on 
every  second  Thursday  in  May,  or  oftener,  in  Case  it  shall  be 
requisite.  The  Assistants  and  freemen  of  the  said  Company, 
or  such  of  them  (not  exceeding  twoe  Persons  from  each  place, 
Towne  or  Citty)  whoe  shall  bee  from  tyme  to  tyme  thereunto 
Elected  or  Deputed  by  the  major  parte  of  the  freemen  of  the 
respective  Townes,  Cittyes  and  Places  for  which  they  shall  bee 
soe  elected  or  Deputed,  shall  have  a  generall  meeting  or  Assem- 
bly, then  and  their  to  Consult  and  advise  in  and  about  the 
Affaires  and  businesse  of  the  said  Company;  And  that  the 
Governour,  or  .  .  .  Deputy  Governour  .  .  .,  and  such  of  the 
Assistants  and  freemen  of  the  said  Company  as  shall  be  soe 
Elected  or  Deputed  and  bee  present  att  such  meeting  or 
Assembly,  or  the  greatest  number  of  them,  whereof  the  Govern- 
our or  Deputy  Governour  and  Six  of  his  Assistants,  at  least, 
to  bee  Seaven,  shall  be  called  the  Generall  Assembly,  and  shall 
have  full  power  and  authority  to  alter  and  change  their  dayes 
and  tymes  of  meeting  or  Generall  Assemblies  for  Electing  the 
Governour,  Deputy  Governour  and  Assistants  or  other  Offi- 
cers, or  any  other  Courts,  Assemblies  or  meetings,  and  to 
Choose,  Nominate  and  appoint  such  and  soe  many  other  Per- 
sons as  they  shall  thinke  fitt  and  shall  bee  willing  to  accept  the 
same,  to  bee  free  of  the  said  Company  and  Body  Politique,  and 
them  into  the  same  to  Admitt  and  to  Elect,  and  Constitute 
such  Officers  as  they  shall  thinke  fitt  and  requisite  for  the 
Ordering,    mannageing   and   disposeing    of    the    affaires    of 
said  Governour  and  Company  and  their  Successors.    AND 
WEE  DOE  hereby  .  .  .  Establish  and  Ordeine,  that  once  in 
the  yeare  .  .  .,  namely,  the  said  Second  Thursday  in  May,  the 
Governour,  Deputy  Governour  and  Assistants  of  the  said 
Company  and  other  Officers  of  the  said  Company,  or  such  of 
them  as  the  said  Generall  Assembly  shall  thinke  fitt,  shall  bee, 
in  the  said  Generall  Court  and  Assembly  to  bee  held  from  that 
day  or  tyme,  newly  Chosen  for  the  yeare  ensuing,  by  such 


4    FOUNDATIONS  OF  AMERICAN  POLITY 

greater  part  of  the  said  Company  for  the  tyme  being  then  and 
there  present.  .  .  . 

2.  Defense  of  Charter  Governments} 

The  other  Charge  in  the  Bill  is,  That  they  have  exercised 
arbitrary  Power.  If  this  be  aimed  at  the  Proprietary  Govern- 
ments, which  however  I  don't  accuse,  I  have  nothing  to  say, 
but  am  sure  that  the  Charter  Governments  stand  clear  of  it. 
The  Thing  speaks  loudly  for  itself.  For  in  the  Governments, 
where  there  are  Charters  and  these  Charters  entire,  all  Officers 
Civil  and  Military  are  elected  by  the  People,  and  that  annu- 
ally; than  which  Constitution  nothing  under  Heaven  can  be 
a  stronger  Barrier  against  arbitrary  Rule.  For  should  it  be 
allowed,  that  the  People,  corrupted  or  deceived,  might  instead 
of  wise  Magistrates  chuse  Tyrants  and  Oppressors  to  Lord 
over  them  one  Year;  yet  it  can't  be  imagined,  that  after  they 
have  felt  the  Smart  of  it,  they  will  do  so  the  next.  Nor  can 
there  be  a  greater  Obligation  on  the  Rulers  themselves  to 
administer  Justice,  than  that  their  Election  depends  on  it  the 
next  Year.  Hence  the  frequent  Choice  of  Magistrates  has  bin 
ever  a  main  Pillar,  upon  which  all  who  have  aim'd  at  Freedom 
in  their  Schemes  of  Government,  have  depended. 

AS  the  Reason  is  incontestable,  so  the  Fact  is  apparent,  that 
these  Governments,  far  from  retrenching  the  Liberty  of  the 
Subject,  have  improved  it  in  some  important  Articles,  which 
the  Circumstances  of  Things  in  Great  Britain  perhaps  don't 
require,  or  won't  easily  admit. 

To  instance  in  a  few:  There  has  bin  from  the  beginning  an 
OfBce  erected  by  Law  in  every  Country,  where  all  Convey- 
ances of  Land  are  enter 'd  at  large,  after  the  Grantors  have 
first  acknowledg'd  them  before  a  Justice  of  Peace;  by  which 
means  much  Fraud  is  prevented,  no  Person  being  able  to  sell 
his  Estate  twice,  or  take  up  more  Money  upon  it  than  it's 
worth.  Provision  has  likewise  bin  made  for  the  Security  of  the 
Life  and  Property  of  the  Subject  in  the  Matter  of  Juries,  who 
are  not  returned  by  the  Sherriff  of  the  County,  but  are  chosen 

*  Jer.  Dummer,  Defence  oj  the  New-England  Charters  (17 21),  35-39. 


CHARTERS  AND  ESTABLISHMENTS       s 

by  the  Inhabitants  of  the  Town  a  convenient  Time  before  the 
sitting  of  the  Courts.  And  this  Election  is  under  the  most  exact 
Regulation,  in  Order  to  prevent  Corruption,  so  far  as  Humane 
Prudence  can  do  it.  It  must  be  noted,  that  SherrifTs  in  the 
Plantations  are  comparatively  but  little  Officers,  and  therefore 
not  to  be  trusted  as  here,  where  they  are  Men  of  ample  For- 
tunes. And  yet  even  here  such  flagrant  Corruptions  have  bin 
found  in  returning  Juries  by  Sherriffs,  that  the  House  of  Com- 
mons thought  it  necessary  in  their  last  Session  to  amend  the 
Law  in  this  Point,  and  pass'd  a  Bill  for  choosing  them  by 
Ballot. 

REDRESS  in  their  Courts  of  Law  is  easy,  quick,  and  cheap. 
All  Processes  are  in  English,  and  no  special  Pleadings  or  De- 
murrers are  admitted,  but  the  general  Issue  is  always  given, 
and  special  Matters  brought  in  Evidence;  which  saves  Time 
and  Expence;  and  in  this  Case  a  Man  is  not  liable  to  lose  his 
Estate  for  a  Defect  in  Form,  nor  is  the  Merit  of  the  Cause 
made  to  depend  on  the  Niceties  of  Clerkship.  By  a  Law  of 
the  Country  no  Writ  may  be  abated  for  a  circumstantial  Error, 
such  as  a  slight  Mis-nomer  or  any  Informality.  And  by  an- 
other Law,  it  is  enacted,  that  every  Attorney  taking  out  a  Writ 
from  the  Clerk's  Office,  shall  indorse  his  Sirname  upon  it,  and 
be  liable  to  pay  to  the  adverse  Party  his  Costs  and  Charges 
in  Case  of  Non-Prosecution  or  Discontinuance,  or  that  the 
Plaintiff  be  Nonsuit,  or  Judgment  pass  against  him.  And  it  is 
provided  in  the  same  Act,  That  if  the  Plaintiff  shall  suffer  a 
Nonsuit  by  the  Attorney's  mis-laying  the  Action,  he  shall  be 
obliged  to  draw  a  new  Writ  without  a  Fee,  in  case  the  Party 
shall  see  fit  to  revive  the  Suit.  I  can't  but  think  that  every 
Body  except  Gentlemen  of  the  long  Robe  and  the  Attornies, 
will  think  this  a  wholesome  Law,  and  well  calculated  for  the 
Benefit  of  the  Subject.  "For  the  quicker  Dispatch  of  Causes, 
Declarations  are  made  Parts  of  the  Writ,  in  which  the  Case  is 
fully  and  particularly  set  forth.  If  it  be  a  matter  of  Account, 
the  Account  is  annexed  to  the  Writ,  and  Copies  of  both  left 
with  the  Defendant;  which  being  done  Fourteen  Days  before 
the  Sitting  of  the  Court,  he  is  oblig'd  to  plead  directly,  and  the 


6    FOUNDATIONS  OF  AMERICAN  POLITY 

Issue  is  then  tryed.  Whereas  by  the  Practice  of  the  Court  of 
King's  Bench,  Three  or  Four  Months  Time  is  often  lost  after 
the  Writ  is  served,  before  the  Cause  can  be  brought  to  Issue. 
Nor  are  the  People  of  Neiv  England  oppressed  with  the  infi- 
nite Delays  and  Expence  that  attend  the  Proceedings  in  Chan- 
cery, where  both  Parties  are  often  ruined  by  the  Charge  and 
Length  of  the  Suit.  But  as  in  all  other  Countries,  England  only 
excepted,  Jus  ^  Aequum  are  held  the  same,  and  never  divided; 
so  it  is  there:  A  Power  of  Chancery  being  vested  in  the  Judges 
of  the  Courts  of  Common  Law  as  to  some  particular  Cases,  and 
they  make  equitable  Constructions  in  Others.  I  must  add,  that 
the  Fees  of  Officers  of  all  sorts  are  setled  by  Acts  of  Assembly 
at  moderate  Prices,  for  the  Ease  of  the  Subject.  .  .  . 

3.  The  Charter  of  Maryland— 1632} 

CHARLES,  by  the  grace  of  GOD,  of  England,  Scotland, 
France,  and  Ireland,  KING,  Defender  of  the  Faith,  &c.  To  all 
to  whom  these  Presents  shall  come,  Greetlng. 

11.  Whereas  our  well  beloved  and  right  trusty  Subject 
CAECILIUS  CALVERT,  .  .  .  hath  humbly  besought  Leave 
of  Us,  that  he  may  transport,  by  his  own  Industry,  and  Expence, 
a  numerous  Colony  of  the  English  Nation,  to  a  certain  Region, 
herein  after  described,  .  .  .  and  that  all  that  Region  ...  be 
given,  granted,  and  confirmed  unto  him,  and  his  Heirs. 

HI.  Know  ye  therefore,  that  WE,  ...  by  this  our  present 
CHARTER  ...  do  Give,  Grant,  and  Confirm,  unto  the 
aforesaid  CAECILIUS,  now  Baron  of  BALTIMORE,  his 
Heirs,  and  Assigns,  all  that  Part  of  the  Peninsula  .  .  .  [etc., 
boundaries  defined.] 

IV.  Also  We  do  Grant  .  .  .  unto  the  said  Baron  of 
BALTIMORE,  ...  all  Islands  and  Islets  within  the  Limits 
aforesaid  .  .  .;  And  furthermore  the  Patronages,  and  Ad- 
vowsons  of  all  Churches  which  (with  the  increasing  Worship 
and  Religion  of  CHRIST)  within  the  said  Region  .  .  .,  here- 
after shall  happen  to  be  built,  together  with  Licence  and  Fac- 
^  Thomas  Bacon,  Laws  of  Maryland  (1765). 


CHARTERS  AND  ESTABLISHMENTS       7. 

ulty  of  erecting  and  founding  Churches,  Chapels,  and  Places 
of  Worship,  in  convenient  and  suitable  Places,  within  the 
Premises,  and  of  causing  the  same  to  be  dedicated  and  conse- 
crated according  to  the  Ecclesiastical  Laws  of  our  Kingdom 
of  England,  with  all,  and  singular  such,  and  as  ample  Rights, 
Jurisdictions,  Privileges,  Prerogatives,  Royalties,  Liberties, 
Immunities,  and  royal  Rights,  and  temporal  Franchises  what- 
soever, as  well  by  Sea  as  by  Land,  within  the  Region  .  .  . 
aforesaid,  to  be  had,  exercised,  used,  and  enjoyed,  as  any 
Bishop  of  Durham,  within  the  Bishoprick  or  County  Palatine 
of  Durham,  in  our  Kingdom  of  England,  ever  heretofore  hath 
had,  held,  used,  or  enjoyed,  or  of  Right  could,  or  ought  to  have, 
hold,  use,  or  enjoy. 

V.  And  WE  do  by  these  Presents  .  .  .  make,  create  and 
CONSTITUTE  HiM,  the  now  Baron  of  BALTIMORE,  and  his 
Heirs,  the  True  and  absolute  Lords  and  Proprietaries  of 
the  Region  aforesaid,  and  of  all  other  the  Premises  (except  the 
before  excepted)  saving  always  the  Faith  and  Allegiance  and 
Sovereign  Dominion  due  to  US  .  .  .;  TO  HOLD  of  US  .  .  . 
as  of  our  Castle  of  Windsor,  in  our  County  of  Berks,  in  free  and 
common  Soccage,  by  Fealty  only  for  all  Services,  and  not  in 
capite,  nor  by  Knight's  Service,  YIELDING  therefore  unto 
US  .  .  .  two  Indian  Arrows  of  those  Parts,  to  be  delivered  at 
the  said  Castle  of  Windsor,  every  Year,  on  Tuesday  in  Easter- 
Week:  And  also  the  fifth  Part  of  all  Gold  and  Silver  Ore,  which 
shall  happen  from  Time  to  Time,  to  be  found  within  the  afore- 
said Hmits. 

VI.  Now,  That  the  aforesaid  Region,  thus  by  us  granted  and 
described,  may  be  eminently  distinguished  above  all  other 
Regions  of  that  Territory,  and  decorated  with  more  ample 
Titles,  .  .  .WE  do  .  .  .  erect  and  incorporate  the  same 
into  a  PROVINCE,  and  nominate  the  same  MARYLAND, 
by  which  name  WE  will  that  it  shall  from  henceforth  be  called. 

VII.  And  forasmuch  as  WE  have  above  made  and  ordained 
the  now  Baron  of  BALTIMORE,  the  true  Lord  and  Pro^rfe- 
/ary  of  the  whole  Province  aforesaid,  .  .  .  WE  .  .  .  do  grant 
unto  the  said  now  Baron,  .  .  .  and  to  his  Heirs,  for  the  good 


8    FOUNDATIONS  OF  AMERICAN  POLITY 

and  happy  Government  of  the  said  province  free,  full,  and 
absolute  Power,  by  the  tenor  of  these  Presents,  to  Ordain, 
Make  and  Enact  LAWS,  of  what  kind  soever,  according  to 
their  sound  Discretions,  whether  relating  to  the  Public  State 
of  the  said  PROVINCE,  or  the  private  Utihty  of  Individuals, 
of  and  with  the  Advice,  Assent,  and  Approbation  of  the  Free- 
Men  of  the  same  province,  or  of  the  greater  Part  of  them,  or 
of  their  Delegates  or  Deputies,  whom  WE  will  shall  be  called 
together  for  the  framing  of  LAWS,  when,  and  as  often  as  Need 
shall  require,  by  the  aforesaid  now  Baron  of  BALTIMORE, 
and  his  Heirs,  and  in  the  Form  which  shall  seem  best  to  him  or 
them,  and  the  same  to  publish  under  the  Seal  of  the  aforesaid 
now  Baron  of  BALTIMORE,  and  his  Heirs,  and  duly  to  exe- 
cute the  same  upon  all  Persons,  for  the  Time  being,  within  the 
aforesaid  province,  and  the  Limits  thereof,  or  under  his  or 
their   Government  and   Power,  ...  by  the   Imposition   of 
Fines,  Imprisonment,  and  other  Punishment  whatsoever;  even 
if  it  be  necessary,  and  the  QuaHty  of  the  Offence  require  it,  by 
Privation  of  Member,  or  Life  .  .  .:  And  also  to  Remit,  Re- 
lease, Pardon,  and  AboHsh,  all  Crimes  and  Offences  whatso- 
ever against  such  Laws,  whether  before,  or  after  Judgment 
passed:  ...  So  Nevertheless,  that  the  Laws  aforesaid  be 
consonant  to  Reason  and  be  not  repugnant  or  contrary,  but 
(so  far  as  conveniently  may  be)  agreeable  to  the  Laws,  Statutes, 
Customs  and  Rights,  of  this  Our  Kingdom  of  England. 

VIII.  And  Forasmuch  as,  in  the  Government  of  so  great  a 
province,  sudden  Accidents  may  frequently  happen,  to  which 
it  will  be  necessary  to  apply  a  Remedy,  before  the  Freeholders 
of  the  said  Province,  their  Delegates,  or  Deputies,  can  be 
called  together  for  the  framing  of  Laws;  neither  will  it  be  fit 
that  so  great  a  Number  of  People  should  immediately,  on  such 
emergent  Occasion,  be  called  together,  WE  therefore,  .  .  . 
do  grant  .  .  .  that  the  aforesaid  now  Baron  of  5^ Lr/MOi^; 
and  his  Heirs,  .  .  .  may,  and  can  make  and  constitute  fit 
and  wholesom  Ordinances  from  Time  to  Time,  to  be  kept  and 
observed  within  the  province  aforesaid,  .  .  .  and  publickly 
to  notify  the  same  to  all  Persons  whom  the  same  in  any  wise 


CHARTERS  AND  ESTABLISHMENTS       9 

do  or  may  affect  .  .  . :  so  that  the  same  Ordinances  do  not,  in 
any  Sort,  extend  to  oblige,  bind,  change,  or  take  away  the 
Right  or  Interest  of  any  Person  or  Persons,  of,  or  in  Member, 
Life,  Freehold,  Goods  or  Chattels. 

XVII.  Moreover,  We  will,  appoint,  and  ordain,  and  by 
these  Presents,  for  US,  our  Heirs  and  Successors,  do  grant  .  .  . 
that  the  same  Baron  of  BALTIMORE,  his  Heirs  and  Assigns, 
from  Time  to  Time,  forever,  shall  have,  and  enjoy  the  Taxes 
and  Subsidies  payable,  or  arising  within  the  Ports,  Harbours, 
and  other  Creeks  and  Places  aforesaid,  with[in]  the  Province, 
aforesaid,  for  Wares  bought  and  sold,  and  Things  there  to  be 
laden,  or  unladen,  to  be  reasonably  assessed  by  them,  and  the 
People  there  as  aforesaid,  on  emergent  Occasion;  to  whom  WE 
grant  Power  by  these  Presents,  for  US,  our  Heirs  and  Succes- 
sors, to  assess  and  impose  the  said  Taxes  and  Subsidies  there, 
upon  just  Cause,  and  in  due  Proportion, 

XVIIL  And  furthermore  .  .  .,  WE  ...  do  give  .  .  . 
unto  the  aforesaid  now  Baron  of  BALTIMORE,  his  Heirs,  and 
Assigns,  full  and  absolute  Licence,  Power,  and  Authority  .  .  . 
[to]  assign,  alien,  grant,  demise,  or  enfeoff  so  many,  such,  and 
proportionate  Parts  and  Parcels  of  the  Premises,  to  any  Person 
or  Persons  willing  to  purchase  the  same,  as  they  shall  think 
convenient,  to  have  and  to  hold  ...  in  Fee-simple,  or  Fee- 
tail,  or  for  Term  of  Life,  Lives,  or  Years;  to  hold  of  the  afore- 
said now  Baron  of  BALTIMORE,  his  Heirs  and  Assigns, 
by  .  .  .  such  .  .  .  Services,  Customs  and  Rents  OF  THIS 
KIND,  as  to  the  same  now  Baron  of  BALTIMORE,  his  Heirs 
and  Assigns,  shall  seem  fit  and  agreeable,  and  not  immedi- 
ately of  US. 


CHAPTER  II 

THE   POLITY   OF  A  ROYAL   PROVINCE 

Seven  of  the  original  colonies  —  eight,  if  Massachusetts  be  included  — 
were  royal  provinces  when  they  declared  their  independenceAlthough 
Massachusetts  had  a  royal  governor,  its  elective  council  gave  the  govern- 
ment a  somewhat  anomalous  character.  Among  the  duties  repeatedly 
enjoined  upon  the  royal  governor  was  that  of  reporting  upon  the  state  of 
his  province.  The  following  extracts  from  reports  by  the  governors  of 
New  York  and  Virginia  give  a  substantiaUy  correct  account  of  these  two 
provincial  establishments. 

4.  Report  of  Governor  Tryon  on  New  York} 

By  the  Grants  of  this  Province  and  other  Territories  to  the 
Duke  of  York  in  1663-4  and  1674,  the  powers  of  Government 
were  vested  in  him,  and  were  accordingly  exercised  by  his 
Governors  until  he  ascended  the  Throne  when  his  Rights  as 
Proprietor  merged  in  his  Crown,  and  the  Province  ceased  to 
be  a  charter  Government. 

From  that  time  it  has  been  a  Royal  Government,  and  in  its 
Constitution  nearly  resembles  that  of  Great  Britain  and  the 
other  Royal  Governments  in  America.  The  Governor  is  ap- 
pointed by  the  King  during  his  Royal  Will  and  pleasure  by 
Letters  Pattent  under  the  Great  Seal  of  Great  Britain  with  very 
ample  powers.  He  has  a  Council  in  Imitation  of  His  Majesty's 
Privy  Council.  —  This  Board  when  full  consists  of  Twelve 
Members  who  are  also  appointed  by  the  Crown  during  Will  & 
Pleasure;  any  three  of  whom  make  a  Quorum  —  The  Province 
enjoys  a  Legislative  Body,  which  consists  of  the  Governor  as 
the  King's  Representative;  the  Council  in  the  place  of  the 
House  of  Lords,  and  the  Representatives  of  the  People,  who  are 
chosen  as  in  England:  Of  these  the  City  of  New  York  sends 
four.  —  All  the  other  Counties  (except  the  New  Counties  of 

^  O'Callaghan,  Documentary  History  of  the  State  of  New  York,  i,  752-56. 
June  II,  1774. 


THE  POLITY  OF  A  ROYAL  PROVINCE     ii 

Charlotte  &  Gloucester  as  yet  not  represented)  send  Two.  — 
The  Borough  of  Westchester,  the  Township  of  Schenectady 
and  the  three  Manors  of  Rensselaer wyck,  Livingston  and 
Cortlandt  each  send  one;  in  the  whole  forming  a  Body  of  Thirty 
one  Representatives. 

The  Governor  by  his  Commission  is  authorized  to  convene 
them  with  the  advice  of  the  Council,  and  adjourn,  prorogue 
or  dissolve  the  General  Assembly  as  he  shall  judge  necessary. 

This  Body  has  not  the  power  to  make  any  Laws  repugnant 
to  the  Laws  and  Statutes  of  Great  Britain.  All  Laws  proposed 
to  be  made  by  this  Provincial  Legislature,  pass  thro'  each  of 
the  Houses  of  Council  and  Assembly,  as  Bills  do  thro'  the 
House  of  Commons  and  House  of  Lords  in  England,  and  the 
Governor  has  a  Negative  voice  in  the  making  and  passing  of  all 
sueh  Laws.  Every  Law  so  passed  is  to  be  transmitted  to  His 
Majesty  under  the  Great  Seal  of  the  Province,  within  Three 
months  or  sooner  after  the  making  thereof  and  a  Duplicate  by 
the  next  conveyance,  in  order  to  be  approved  or  disallowed  by 
His  Majesty;  And  if  His  Majesty  shall  disallow  any  such  Law 
and  the  same  is  signified  to  the  Governor  under  the  Royal  Sign 
Manual  or  by  Order  of  his  Majesty's  Privy  Council,  from 
thenceforth  such  law  becomes  utterly  void.  —  A  law  of  the  Pro- 
vince has  limited  the  duration  of  the  Assembly  to  seven  years. 

The  Common  Law  of  England  is  considered  as  the  Funda- 
mental law  of  the  Province  and  it  is  the  received  Doctrine  that 
all  the  Statutes  (not  Local  in  their  Nature,  and  which  can  be 
fitly  applied  to  the  circumstances  of  the  Colony)  enacted  before 
the  Province  had  a  Legislature,  are  binding  upon  the  Colony, 
but  that  Statutes  passed  since  do  not  affect  the  Colony,  unless 
by  being  specially  named,  such  appears  to  be  the  Intentions 
of  the  British  Legislature. 

^  The  Province  has  a  Court  of  Chancery  in  which  the  Governor 
or  Commander  in  chief  sits  as  Chancellor  and  the  Practice  of 
the  Court  of  Chancery  in  England  is  pursued  as  closely  as 
possible.  The  officers  of  this  Court  consist  of  a  Master  of  the 
Rolls  newly  created  —  Two  Masters.  —  Two  Clerks  in  Court. 
—  A  Register.  —  An  Examiner,  and  a  Serjeant  at  Arms. 


12 


FOUNDATIONS  OF  AMERICAN  POLITY 


Of  the  Courts  of  Common  Law  the  Chief  is  called  the  Su- 
preme Court.  —  The  Judges  of  which  have  all  the  powers  of  the 
King's  Bench,  Common  Pleas  and  Exchequer  in  England.  This 
Court  sits  once  every  three  months  at  the  City  of  New  York, 
and  the  practice  therein  is  modelled  upon  that  of  the  King's 
Bench  at  Westminster.  —  Tho'  the  judges  have  the  powers 
of  the  Court  of  Exchequer  they  never  proceed  upon  the  Equity 
side.  —  The  court  has  no  Officers  but  one  Clerk,  and  is  not 
organized  nor  supplied  with  any  officers  in  that  Department  of 
the  Exchequer,  which  in  England  has  the  care  of  the  revenue. 
—  The  judges  of  the  Supreme  Court  hold  their  offices  during 
the  King's  Will  and  Pleasure  and  are  Judges  of  Nisi  prius  of 
Course  by  act  of  Assembly,  &  Annually  perform  a  Circuit 
through  the  Counties.  —  The  Decisions  of  this  Court  in  General 
are  final  unless  where  the  Value  exceeds  £300.  Sterling,  in 
which  case  the  subject  may  be  relieved  from  its  errors  only  by 
an  application  to  the  Governor  &  Council,  and  where  the  Value 
exceeds  £500  sterling  an  appeal  lies  from  the  Judgment  of  the 
latter  to  His  Majesty  in  Privy  Council. 

By  an  Act  of  the  Legislature  of  the  Province  suits  are  pro- 
hibited to  be  brought  in  the  Supreme  Court  where  the  Value 
demanded  does  not  exceed  £20.  Currency. 

The  Clerk's  Office  of  the  Supreme  Court  has  always  been  held 
as  an  Appendage  to  that  of  the  Secretary  of  the  Province. 

There  is  also  in  each  County  an  Inferior  Court  of  Common 
Pleas,  which  has  the  Cognizance  of  all  actions  real,  personal  & 
mixed,  where  the  matter  in  demand  is  above  £5.  in  value.  — 
The  practice  of  these  Courts  is  a  mixture  between  the  Kings 
Bench  and  Common  Pleas  at  Westminster.  —  Their  Errors 
are  corrected  in  the  first  Instance  by  Writ  of  Error  brought 
into  the  Supreme  Court;  and  the  Judges  hold  their  offices 
during  pleasure.  —  The  Clerks  of  these  Courts  also  hold  their 
offices  during  pleasure  and  are  appointed  by  the  Governor, 
eJjcept  the  Clerk  of  Albany  who  is  appointed  under  the  King's 
Mandate. 

Besides  these  Courts  the  Justices  of  peace  are  by  Act  of 
Assembly  empowered  to  try  all  causes  to  the  amount  of  £5. 


THE  POLITY  OF  A  ROYAL  PROVINCE     13 

Currency,  (except  where  the  Crown  is  concerned  or  where  the 
Title  of  Lands  shall  come  into  Question;  —  and  Actions  of 
Slander)  but  the  parties  may  either  of  them  demand  a  jury  of 
Six  Men.  —  If  wrong  is  done  to  either  party,  the  person 
injured  may  have  a  Certiorari  from  the  Supreme  Court,  tho' 
the  remedy  is  very  inadequate. 

The  Courts  of  Criminal  Jurisdiction  are  Correspondent  to 
those  in  England.  —  The  Supreme  Court  exercises  it  in  the  City 
of  New  York,  as  the  King's  Bench  does  at  Westminster.  —  The 
Judges  when  they  go  the  Circuit  have  a  Commission  of  Oyer 
and  Terminer  and  General  Gaol  Delivery;  and  there  are  Courts 
of  Sessions  held  by  the  Justices  of  the  peace;  the  powers  of 
which  and  their  proceedings  correspond  with  the  like  Courts 
of  England.  —  The  Office  of  Clerk  of  the  Sessions,  is  invari- 
ably connected  with  that  of  the  Clerk  of  the  Inferior  Court  of 
Common  Pleas  in  the  respective  Counties. 
•  By  acts  of  the  Provincial  Legislature  the  Justices  of  the  Peace 
have  an  extraordinary  Jurisdiction  with  respect  to  some 
offences  by  which  any  three  Justices  (one  being  of  the  Quorum) 
where  the  offender  does  not  find  Bail  in  48  Hours  after  being 
in  the  Custody  of  the  Constable,  may  try  the  party  without 
any  [  .  .  .  ]  or  a  jury,  for  any  offence  under  the  Degree  of 
Grand  Larceny;  and  inflict  any  punishment  for  these  small 
offences  at  their  Discretion,  so  that  it  exceeds  (qy?  extends) 
not  to  Life  or  Limb.  —  And  any  three  Justices  of  the  Peace 
(one  being  of  the  Quorum)  and  Five  Freeholders  have  power 
without  a  Grand  or  Petty  Jury  to  proceed  against  and  try  in 
a  Summary  Way,  Slaves  offending  in  certain  cases,  and  punish 
them  even  with  death. 

The  Duty  of  His  Majesty's  Attorney  General  of  the  Province 
is  similar  to  the  Duty  of  the  Officer  in  England,  and  the  Master 
of  the  Crown  Office:  He  is  appointed  by  the  Crown  during 
Pleasure,  and  His  Majesty  has  no  Sollicitor  General  nor  Coun- 
cil in  the  Province,  to  assist  the  Attorney  General  upon  any 
Occasion. 

There  are  two  other  Courts  in  the  Province.  The  Court  of 
Admiralty  which  proceeds  after  the  Course  of  the  Civil  Law 


14    FOUNDATIONS  OF  AMERICAN  POLITY 

in  matters  within  its  Jurisdiction,  which  has  been  so  enlarged 
by  divers  Statutes  as  to  include  almost  every  breach  of  the 
Acts  of  Trade.  —  From  this  Court  an  appeal  Ues  to  a  Superior 
Court  of  Admiralty,  lately  Established  in  North  America  by 
Statute;  before  this  Establishment  an  appeal  only  lay  to  the 
High  Court  of  Admiralty  of  England. 

The  Prerogative  Court  concerns  itself  only  in  the  Probate  of 
wills  and  in  matters  relating  to  the  Administration  of  the 
Estates  of  Intestates  and  granting  Licences  of  Marriages.  The 
Governor  is  properly  the  Judge  of  this  Court  but  it  has  been 
usual  for  him  to  act  in  general  by  a  Delegate. 

The  Province  is  at  present  divided  into  fourteen  Counties, 
ylz  _  The  City  and  County  of  New  York  —  The  County  of 
Albany  —  Richmond  (which  comprehends  the  whole  of  Staten 
Island)  Kings,  Queens  and  Suffolk  (which  include  the  whole  of 
Nassau  or  Long  Island)  Westchester,  Dutches,  Ulster,  Orange, 
Cumberland,  Gloucester,  Charlotte  and  Tryon.  —  For  each  of 
these  Counties  a  Sheriff  and  one  or  more  Coroners  are  appointed 
by  the  Governor  who  hold  their  offices  during  pleasure. 

As  to  the  MiHtary  power  of  the  Province,  the  Governor  for 
the  time  being  is  the  Captain  General  and  Commander  in  Chief 
and  appoints  all  the  Provincial  Military  officers  during 
pleasure. 

5.  Report  of  Governor  Gooch  on  Virginia.^ 

The  Const,  of  ye  Gov't,  resembles  Gt.  Britn.  as  near  as  may 
be:  ist  in  the  Point  of  Legislature  ye  Govr.  in  Place  of  ye  Kg. 
has  the  Power  of  calling.  Proroguing  or  disolv'g  Gen.  Assem- 
blies wch  represent  ye  Parliament.  This  Assembly  consists  of 
2  Houses.  Ye  upper  is  composed  only  of  ye  council  in  number 
12,  who  are  of  ye  Principal  Gentlemen  of  ye  Country,  &  who 
are  supplyed  from  time  to  time  (in  vacancies)  by  Ks  nomina- 
tion under  his  sign  manual.  The  lower  House  ye  House  of  Bur- 
gesses is  composed  of  Representatives  chosen  by  ye  majority 

^  "  Queries  from  ye  Lds  of  Trade  to  Sr  Wm.  Gooch  Govr  of  Virginia  & 
his  Answers  Abridged,"  in  Virginia  Magazine  of  History,  in,  1 14-17.  I 
have  edited  the  text  freely,  in  order  to  make  intelligible  certain  abbre- 
viations, like  H  of  B,  Chan.,  N.N.,  etc. 


THE  POLITY  OF  A  ROYAL  PROVINCE     15 

of  ye  Freeholders,  two  in  each  county.  One  for  Wmsburgh, 
one  for  Norfolk,  one  for  Ja'stown  &  ye  Coll.  Wee  have  now 
including  ye  North  Neck  44  Counties,  which  makes  ye  number 
of  Burgesses  92.  All  Bills  for  laying  duties  on  Commodities  & 
Taxes  on  the  people  take  rise  in  ye  House  of  Burgesses,  and 
generally  all  Bills  prepared  on  petitions  or  Representations  of 
ye  People  are  first  moved  there;  but  either  House  may  frame 
Bills  as  they  find  most  expedient  for  ye  publick  service.  The 
Bills  pass  through  ye  like  Forms  as  in  Parliament,  &  when 
passed  both  Houses  are  enrolled  for  ye  Govrs  assent  commonly 
given  ye  last  day  of  the  session. 

But  ye  Govr  has  a  negative  &  may  reject  any  bill  he  thinks 
fitt.  For  ye  administration  of  Justice  there  are  held  monthly 
Courts  in  each  County  by  persons  commissioned  by  ye  Govr, 
who  not  only  have  ye  power  of  Justices  of  ye  Peace  but  have 
cognizance  of  all  suits  of  wht  value  soever  arising  within  their 
respective  Jurisdictions,  both  at  common  Law  &  Chancery: 
excepting  only  such  criminal  offences  as  are  punishable  by  loss 
of  Life  or  Member.  For  ye  city  of  Wms  there  is  also  a  Court  of 
Hustins,  held  monthly  before  ye  mayor  &  aldn  for  tryal  of  all 
suits  at  Common  Law  arising  wth  in  town  &  not  exceeding  2o£ 
or  its  value.  Ye  same  for  Norfolk.  There  are  ye  Inferior  Courts 
of  ye  Govmt  &  from  these  Appeal  lies  in  ye  gl  Ct.  appellt  givg 
security  to  Prosect  wth  effect. 

The  General  Court  consists  of  ye  Govr  &  Council,  any  5  of 
whom  make  a  Quorum.  This  Court  hath  Jurisdiction  of  all 
Causes  Real,  Pers'l  &  mixt  at  Common  Law  bro't  thither 
originally  not  under  £10  ster;  or  by  appeal  or  superseds  (wch 
in  ye  nature  of  a  writ  of  error)  from  ye  Inferiour  Courts.  All 
criminal  offences  are  here  tryable  &  it  is  also  a  Court  of  Chan- 
cery for  matters  of  a  great  value  but  by  act  of  A.  as  appeal  lies 
from  an  Inferior  Court  unless  ye  Debt,  Damage  or  thing  in 
Demand  Exclusive  of  Costs  exceed  ye  value  of  £5,  excepting 
only  wch  the  Titles  or  Bounds  of  Land  are  in  question,  and 
appeals  lie  to  King  in  Council  for  £300  ster.  or  upwards.  There 
are  two  Courts  of  Oyer  and  Terminer  held  yearly  ye  2nd  Tues- 
day in  June,  &  Xs  for  trying  all  criminals  yt  happen  to  be  com- 


i6    FOUNDATIONS  OF  AMERICAN  POLITY 

mitted  after  the  respective  General  Courts.  Ye  Judges  here 
are  only  such  as  are  members  of  ye  Council  &  sitt  by  ye  Govrs 
commission  pursuant  to  his  Majesty's  Instructn.  For  punish- 
ing slaves  for  capitl  Crimes  a  commission  of  Oyer  and  Term- 
iner issues  from  ye  Gr.  to  ye  Justices  of  ye  County  where  ye 
offence  is  committed  by  proof  of  Evidence  without  any  Jury, 
&  on  convictions  they  award  exn  &  set  a  value  on  ye  slave, 
which  is  afterwards  paid  to  ye  owner  by  ye  General  Assembly 
as  an  encouragement  to  People  to  discover  ye  villanies  of  their 
slaves.  For  breaches  of  the  act  of  Trade  &  for  determining 
controversies  concerning  salvage,  mariner's  wages  &  other 
maritime  affairs,  their  is  a  Court  of  admiralty  held  before  a 
Judge  constituted  under  ye  Seal  of  ye  high  Cot.  of  admty.  of 
Great  Britain;  to  this  Cot  belong  an  advocate,  a  Register  & 
Marshal  appointed  by  ye  Govr.  who  is  also  a  *  *  vice  admiral 
of  all  ye  Seas,  Rivrs,  Creeks  &  Coasts  within  his  Govmt.  This 
Court  is  only  held  as  occasion  requires  &  an  appeal  lyes  to  ye 
K.  Council.  The  Govr  has  also  a  Comn  for  trying  Pirates. 

There  is  also  a  Cot.  of  ye  comissary  of  ye  Ld.  Bp.  of  Londn 
wch  only  meddles  with  the  Punishment  of  the  Immors  of  ye 
Clergy,  &  proceeds  by  monition,  suspension  or  Deprivation 
according  to  the  offence  &  an  appeal  lyes  to  the  Delegates 
appd.  by  Ks.  Com.  in  England. 

The  Governour  is  invested  with  a  Power  Pardoning  all 
Crimes  except  Treason  &  willful  Murder,  &  in  these  he  has  a 
Power  of  suspending  ye  execun  by  reprieve  till  his  Majs 
Pleasure  is  known.  The  Govr.  can  remitt  all  fines  &  For- 
feitures accruing  to  ye  Crown  to  ye  value  of  £io  ster.  &  if  above 
he  may  suspend  the  levying  till  ye  Ks  pleasure  be  known.  But 
the  inhabitants  of  ye  N.  Neck  are  to  be  excepted  ye  Proprietor 
whereof  has  by  his  Charter  all  the  Fines  &  Forfeitures  Felons 
good  &  deodances  within  the  Limits  of  his  Grant. 

For  matters  of  State  there  is  a  Council  appointed  by  ye  K. 
to  be  assist,  with  their  advice  to  ye  Govr.  in  all  things  touching 
his  Majs  service  viz.  the  disposing  of  his  Lands,  managemt.  of 
his  Revenue,  nominating  or  Removl  of  Js  of  Peace,  Sheriffs, 
coroners,  or  other  officers  of  trust  who  receive  ye  Comn  from 


THE  POLITY  OF  A  ROYAL  PROVINCE     17 

ye  Govr.  for  ye  better  ordering  the  tributary  Indians  &  making 
War  or  Peace  with  foreign  Indians  &  various  other  Matters 
wch  concern  the  Publick  Quiet  of  ye  Govt  &  do  not  fall  under 
the  direction  of  Positive  Laws.  There  is  no  Sallary  annexed 
to  this  office,  but  as  the  Council  compose  the  upper  House  of 
Assembly  &  are  also  Judges  of  the  General  Court  there  is  an 
appt.  of  £600  p  an.  out  of  ye  settled  Revenue  wch  is  proportd. 
&  divided  among  them  according  to  their  respective  attendee 
on  these  two  Services.  And  such  of  them  as  attend  at  the  Court 
of  Oyer  &  Terminer  have  their  Proportion  of  £100  allowed  out 
of  ye  Revenue  for  each  Court. 


CHAPTER  III 

THE    POWERS    OF  A  ROYAL  GOVERNOR 

The  royal  provinces  —  Massachusetts  excepted  —  had  no  charters. 
The  formal  powers  of  the  governor  were  laid  down  in  his  commission. 
More  specific  duties  were  enjoined  upon  him  in  the  instructions  which 
accompanied  his  commission  or  were  sent  out  from  time  to  time.  In  all 
the  provinces  the  theoretical  authority  of  the  governor  was  in  practice 
greatly  circumscribed  by  the  extraordinary^  development  of  representative 
assemblies.  The  sharp  injunctions  of  the  instructions  bear  witness  to 
colonial  practices  which  often  thwarted  the  purposes  of  the  Crown. 

6.  Commission  of  Francis  Bernard  as  Governor  of  New 
Jersey  — 1758} 

GEORGE  THE  SECOND  by  the  Grace  of  God,  of  Great 
Britain,  France  and  Ireland  King,  Defender  of  the  Faith,  &c. 

To  Our  trusty  and  Wellbeloved  Francis  Bernard  Esq'. 
Greeting:  We  reposing  especial  Trust  and  Confidence  in  the 
Prudence,  Courage  and  Loyalty  of  you  the  said  Francis  Ber- 
nard, of  our  especial  Grace  certain  Knowledge  and  meer 
motion,  have  thought  fit  to  constitute  and  appoint,  and  by 
these  Presents  do  constitute  and  appoint  you  ...  to  be  Our 
Cap"  General  and  Governor  in  Chief  in  &  over  Our  Province 
of  Nova  Caesarea  or  New  Jersey,  Viz :  the  Division  of  East  and 
West  New  Jersey  in  America,  which  we  have  thought  fit  to 
reunite  into  one  Province  and  settle  under  one  entire  Govern- 
ment. 

And  We  do  hereby  require  and  command  you  to  do  and 
execute  all  things  in  due  manner,  that  shall  belong  unto  your 
said  Command  and  the  Trust  We  have  reposed  in  you,  accord- 
ing to  the  several  Powers  and  Directions  granted  or  appointed 
you  by  this  present  Commission,  and  the  Instructions  and 
Authorities  herewith  given  you,  or  by  such  further  Powers, 

*  Ricord  and  Nelson,  Documents  relating  to  the  Colonial  History  of  the 
State  of  New  Jersey,  ix,  23-34  passim. 


A   ROYAL  GOVERNOR  19 

Instructions  and  Authorities  as  shall  at  any  time  hereafter  be 
granted  or  appointed  you  under  Our  Signet  and  Sign  Manual 
or  by  Our  Order  in  Our  Privy  Council,  and  according  to  such 
reasonable  Laws  and  Statutes,  as  now  are  in  Force,  or  here- 
after shall  be  made  and  agreed  upon  by  you,  with  the  Advice 
and  Consent  of  Our  Council  and  the  Assembly  of  Our  said 
Province  under  your  Government,  in  such  manner  and  form  as 
is  hereafter  expressed.  .  .  . 

And  We  do  hereby  give  and  grant  unto  you  full  Power  and 
Authority  to  suspend  any  of  the  Members  of  Our  said  Council, 
from  sitting,  voting  and  assisting  therein,  if  you  shall  find  just 
Cause  for  so  doing. 

And  if  it  shall  at  any  time  happen,  that  by  the  Death, 
Departure  out  of  Our  said  Province,  or  suspension  of  any  of 
Our  said  Councillors  or  otherwise,  there  shall  be  a  Vacancy  in 
Our  said  Council,  any  three  whereof  We  do  hereby  appoint 
to  be  a  Quorum;  Our  Will  and  Pleasure  is,  that  you  signify  the 
same  unto  us  by  the  first  opportunity,  that  We  may  under  Our 
Signet  and  Sign  Manual  constitute  and  appoint  others  in  their 
Stead.  .  .  . 

And  We  do  hereby  give  and  grant  unto  You  full  Power  & 
Authority  with  the  Advice  and  Consent  of  Our  said  Council, 
from  time  to  time  as  need  shall  require,  to  summon  and  call 
general  Assemblies  of  the  said  Freeholders  and  Planters  within 
your  Government,  in  manner  and  form  as  shall  be  directed  in 
Our  Instructions,  which  shall  be  given  you  together  with  this 
Our  Commission,  .  .  . 

And  you  .  .  .,  with  the  Consent  of  Our  said  Council,  [and] 
Assembly  or  the  Major  Part  of  them  respectively,  shall  have 
full  Power  and  Authority  to  make,  constitute  and  ordain  Laws, 
Statutes  and  Ordinances  for  the  publick  Peace,  Welfare  &  good 
Government  of  Our  said  Province  and  of  the  People  and  In- 
habitants thereof,  and  such  others  as  shall  resort  thereto,  and 
for  the  Benefit  of  Us,  Our  Heirs  and  Successors;  which  said 
Laws,  Statutes  and  Ordinances  are  not  to  be  repugnant,  but  as 
near  as  may  be  agreable  unto  the  Laws  and  Statutes  of  this  Our 
Kingdom  of  Great  Britain;  provided  that  all  such  Laws,  Stat- 


20    FOUNDATIONS  OF  AMERICAN  POLITY 

utes  and  Ordinances,  of  what  Nature  or  duration  soever,  be, 
within  three  Months  or  sooner  after  the  making  thereof,  trans- 
mitted unto  Us  under  Our  Seal  of  Nova  Csesarea  or  New  Jersey, 
for  Our  Approbation  or  disallowance  of  the  same,  as  also  Dupli- 
cates thereof  by  the  next  Conveyance. 

And  in  case  any  or  all  of  the  said  Laws,  Statutes  and  Ordi- 
nances (being  not  before  confirm'd  by  Us)  shall  at  any  time 
be  disallow'd  and  not  approved,  and  so  signified  by  Us,  Our 
Heirs  or  Successors  under  Our  or  their  Sign  Manual  and  Signet, 
or  by  Order  of  Our  or  their  Privy  Council  unto  you  ...  or  to 
the  Commander  in  Chief  of  Our  said  Province  for  the  time 
being,  then  such  and  so  many  of  the  said  Laws,  Statutes  and 
Ordinances  as  shall  be  so  disallowed  and  not  approved,  shall 
from  henceforth  cease,  determine  and  become  utterly  void  and  of 
none  Effect,  any  thing  to  the  contrary  thereof  notwithstanding. 
And  to  the  end  that  nothing  may  be  passed  or  done  by  Our 
said  Council  or  Assembly,  to  the  Prejudice  of  us.  Our  Heirs 
and  Successors,  We  Will  ^  Ordain,  that  you  .  .  .  shall  have 
and  enjoy  a  Negative  Voice  in  the  making  and  passing  of  all 
Laws,  Statutes  and  Ordinances,  as  aforesaid. 

And  you  shall  and  may  hkewise  from  time  to  time,  as  you 
shall  judge  it  necessary,  adjourn,  prorogue  and  dissolve  all 
General  Assemblies,  as  aforesaid.  .  .  . 

And  We  do  further  by  these  Presents  give  and  grant  unto 
you  .  .  .  full  Power  and  Authority  with  the  Advice  and  Con- 
sent of  Our  said  Council,  to  erect,  constitute  and  appoint  such 
&  so  many  Courts  of  Judicature  and  publick  justice  within  Our 
said  Province  under  your  Government,  as  you  and  they  shall 
think  fit  and  necessary  for  the  hearing  and  determining  all 
causes,  as  well  Criminal  as  Civil,  according  to  Law  and 
Equity.  .  .  . 

And  We  do  hereby  authorize  and  impower  You  to  constitute 
and  appoint  Judges  (and  in  Cases  requisite  Commissioners  of 
Oyer  and  Terminer),  Justices  of  the  Peace,  and  other  necessary 
Officers  and  Ministers  in  Our  said  Province  for  the  better 
Administration  of  Justice  and  putting  the  Laws  in  Execution, 
and  to  administer  or  cause  to  be  administered  unto  them  such 


A  ROYAL  GOVERNOR  21 

Oath  or  Oaths  as  are  usually  given  for  the  due  Execution  and 
Performance  of  Ofifices  and  Places,  and  for  the  clearing  of 
Truth  in  Judicial  Causes. 

And  We  do  hereby  give  and  grant  unto  you  full  Power  and 
Authority  where  you  shall  see  Cause,  or  shall  judge  any 
offender  or  offenders  in  criminal  Matters,  or  for  any  Fines  or 
Forfeitures  due  unto  Us,  fit  Objects  of  Our  Mercy,  to  pardon 
all  such  Offenders,  and  to  remit  all  such  Offences,  Fines  and 
Forfeitures,  Treason  and  Willful  Murder  only  excepted,  in 
which  Cases  you  shall  likewise  have  Power  upon  extraordinary 
Occasions  to  grant  Reprieves  to  the  Offenders,  untill  and  to  the 
Intent  Our  Royal  Pleasure  may  be  Known  therein. 

And  We  do  by  these  Presents  authorize  and  impower  you  to 
collate  any  Person  or  Persons  to  any  Churches,  Chapels  or 
other  Ecclesiastical  Benefices  within  Our  said  Province,  as 
often  as  any  of  them  shall  happen  to  be  void. 

And  We  do  hereby  give  and  grant  unto  you  ...  by  your- 
self or  by  your  Captains  and  Commanders  by  you  to  be 
authorized,  full  Power  and  Authority  to  levy,  arm,  muster, 
command,  and  imploy  all  Persons  whatsoever  residing  within 
Our  said  Province  of  Nova  Caesarea  or  New  Jersey  under  your 
Government,  and,  as  Occasion  shall  serve,  to  march  from  one 
place  to  another,  or  to  embark  them  for  the  resisting  and  with- 
standing of  all  Enemies,  Pirates  and  Rebels,  both  at  Sea  and 
Land,  and  to  transport  such  Forces  to  any  of  Our  Plantations 
in  America  (if  necessity  shall  require)  for  the  Defence  of  the 
same  against  the  invasion  or  Attempts  of  any  of  Our  Enemies, 
and  such  Enemies,  Pirates  and  Rebels,  if  there  shall  be  occa- 
sion, to  persue  and  prosecute  in  or  out  of  the  Limits  of  Our  said 
Province  and  Plantations  or  any  of  them;  and,  if  it  shall  so 
please  God,  them  to  vanquish,  apprehend  and  take,  and  being 
taken  either  according  to  Law  to  put  to  Death,  or  Keep  and 
preserve  ahve  at  your  Discretion,  &  to  execute  Martial  Law 
in  time  of  Invasion  or  other  times  when  by  Law  it  may  be 
executed,  and  to  do  and  execute  all  and  every  pther  thing  and 
things  which  to  Our  Captain  General  and  Governor  in  Chief 
doth  or  ought  of  Right  to  belong.  .  .  . 


22    FOUNDATIONS  OF  AMERICAN  POLITY 

Our  further  Will  &  Pleasure  is,  that  all  publick  Money  raised 
or  which  shall  be  raised  by  any  Act  hereafter  to  be  made  within 
Our  said  Province,  be  issued  out  by  Warrant  from  You,  by 
and  with  the  advice  &  Consent  of  Our  Council,  and  disposed  of 
by  you  for  the  Support  of  the  Government,  and  not  other- 
wise. .  .  . 

7.  Instructions  to  Governor  Bernard  of  Neiv  Jersey  — 1758} 

INSTRUCTIONS  to  Our  Trusty  and  Well  beloved  FRAN- 
CIS BERNARD  ESQ"  Our  Captain  General  and  Governor  in 
Chief  in  and  over  Our  province  of  Nova  Caesarea  or  New 
Jersey  in  America. 

i^*  With  these  Our  Instructions  your  [you]  will  receive  Our 
Commission  under  Our  Great  Seal  of  Great-Britain,  consti- 
tuting You  Our  Capt°  General  and  Governor  in  Chief  in  and 
over  Our  province  of  New  Jersey,  You  are  therefore  with  all 
convenient  Speed  to  repair  to  Our  said  Province,  and  being 
there  arrived,  You  are  to  take  upon  you  the  Execution  of  the 
Peace  [Place]  and  Trust  We  have  reposed  in  You,  and  forth- 
with to  call  together  the  Members  of  our  Council  in  and  for  that 
province,  viz*.  .  .  . 

4.  You  are  forthwith  to  communicate  to  Our  said  Council 
such  and  so  many  of  these  Our  Instructions  wherein  their 
Advice  and  Consent  are  required,  as  likewise  all  such  others 
from  time  to  time  as  you  shall  find  convenient  for  Our  Service 
to  be  imparted  to  them. 

5.  You  are  to  permit  the  Members  of  Our  said  Counb[c]il 
to  have  and  enjoy  Freedom  of  Debate  and  Vote  in  all  aflairs  of 
publick  Concern,  that  may  be  debated  in  Council.  .  .  . 

9.  And  in  the  Choice  and  nomination  of  the  Members  of 
Our  said  Council,  as  also  of  the  Chief  Officers,  Judges,  Assistant 
Justices  and  Sheriffs;  You  are  always  to  take  Care,  that  they 
be  men  of  good  life,  well  affected  to  our  Government,  of  good 
Estates,  and  of  Abilities  suitable  to  their  Employments.  .  .  . 

12.  And  Our  Will  and  Pleasure  is,  that  with  all  convenient 

^  Ricord  and  Nelson,  Documents  relating  to  the  Colonial  History  of  the 
State  of  New  Jersey,  ix,  40-77  passim. 


A  ROYAL  GOVERNOR  23 

Speed  you  call  together  one  general  Assembly  for  the  enacting 
of  Laws  for  the  joint  and  mutual  Good  of  the  whole  province. . .  . 

14.  You  are  to  choose  in  the  passing  of  Laws,  that  the  Stile 
of  enacting  the  same  be  by  the  Governor,  Council  and  Assembly 
and  no  other;  You  are  also,  as  much  as  possible,  to  observe  in 
the  passing  of  all  Laws,  that  whatever  may  be  requisite  upon 
each  different  matter  be  accordingly  provided  for  by  a  different 
Law,  without  Intermixing  in  one  and  the  same  Act  such  things 
as  have  no  proper  relation  to  each  other,  and  you  are  more 
especially  to  take  care,  that  no  Clause  or  Clauses  be  inserted 
in  or  annexed  to  any  Act,  which  shall  be  foreign  to  what  the 
Title  of  such  respective  Act  imports;  and  that  no  perpetual 
Clause  be  made  part  of  any  temporary  Law;  and  that  no  Act 
whatsoever  be  suspended,  altered,  continued,  revived  or  re- 
peated [repealed]  by  general  Words,  but  that  the  Title  and  Date 
of  such  Act  so  suspended,  alter'd,  continued,  revived  or  repealed 
be  particularly  mentioned  and  expressed  in  the  enacting 
part. 

15.  And  whereas  several  Laws  have  formerly  been  enacted 
in  several  of  Our  Plantations  in  America,  for  so  short  a  time, 
that  the  Assent  or  refusal  of  Our  Royal  predecessors  cou'd  not 
be  had  thereupon  before  the  time,  for  which  such  Laws  were 
enacted,  did  expire;  You  shall  not  for  the  future  give  Your 
Assent  to  any  Law;  that  shall  be  enacted  for  a  less  time  than 
two  Years,  except  in  the  Cases  hereinafter  mention'd.  And 
you  shall  not  re-enact  any  Law  to  which  the  Assent  of  Us  or 
Our  Royal  predecessors  has  once  been  refused,  without  express 
Leave  for  that  purpose  first  obtained  from  us,  upon  a  full 
Representation  by  you  to  be  made  to  Our  Commissioners  for 
Trade  and  Plantations,  in  order  to  be  laid  before  Us,  of  the 
reason  and  necessity  for  passing  such  Law,  nor  give  your 
Assent  to  any  Law  for  repeating  any  other  act  pass'd  in  your 
Government,  whether  the  same  is  [has]  or  has  not  received  Our 
Royal  Approbation,  unless  You  take  care  that  there  be  a 
Clause  inserted  therein  suspending  and  deferring  the  Execu- 
tion thereof  until  Our  Pleasure  be  known  concerning  the 
same. 


24    FOUNDATIONS  OF  AMERICAN  POLITY 

1 6.  And  whereas  great  Mischiefs  do  arise  by  the  Frequent 
passing  Bills  of  an  unusual  and  extraordinary  Nature  and 
Importance  in  Our  Plantations,  which  Bills  remain  in  force 
there  from  the  time  of  enacting  until  Our  Pleasure  be  signified 
to  the  contrary;  We  do  hereby  Will  and  require  you  not  to  pass 
or  give  your  Consent  hereafter  to  any  Bill  or  Bills  in  the  Assem- 
bly of  Our  said  Province  of  unusual  and  extraordinary  Nature 
and  importance,  wherein  Our  Prerogative,  or  the  Property  of 
Our  Subjects  may  be  prejudiced,  or  the  Trade  or  Shiping  of  this 
Kingdom  any  Ways  affected,  until  you  shall  have  first  trans- 
mitted to  Our  Commissioners  for  Trade  and  Plantations,  in 
order  to  be  laid  before  Us,  the  Draught  of  such  a  Bill  or  Bills, 
and  shall  have  receiv'd  Our  Royal  Pleasure  thereupon,  unless 
you  take  care  in  the  passing  of  any  Bill  of  such  Nature  as 
before  mentioned,  that  there  be  a  Clause  inserted  therein,  sus- 
pending and  deferring  the  Execution  thereof  untill  Our 
Pleasure  shall  be  known  concerning  the  same,  .  .  . 

21^*  It  is  Our  express  Will  and  Pleasure,  that  no  Law  for 
raising  any  imposition  on  Wines  or  other  strong  Liquors  be 
made  to  continue  for  less  than  one  whole  Year,  and  that  all 
other  Laws  made  for  the  supply  and  Support  of  the  Govern- 
ment shall  be  indefinite  and  without  Limitation,  except  the 
same  be  for  a  temporary  Service,  and  which  shall  expire  and 
have  their  full  effect  within  the  time  therein  prefixt.  .  .  . 

23.  Whereas  several  Inconveniences  have  arisen  to  Our 
Governments  in  the  Plantations  by  Gifts  and  Presents  made 
to  Our  Governors  by  the  general  Assemblies;  you  are  therefore 
to  propose  unto  the  Assembly  at  their  first  meeting  after  your 
Arrival,  and  to  use  your  utmost  Endeavour  with  them,  that 
an  Act  be  passed  for  raising  and  settling  a  pubHck  Revenue  for 
defraying  the  necessary  Charge  of  the  Government  of  Our 
said  Province,  and  that  therein  Provision  be  particularly  made 
for  a  competent  Salary  to  yourself.  .  .  . 

28.  You  are  to  transit  Authentick  Copies  of  all  Laws,  Stat- 
utes and  Ordinances  that  are  now  made  and  in  Force  which 
have  not  yet  been  sent,  or  which  at  any  time  hereafter  shall  be 
made  or  enacted  within  the  said  province.  .  .  . 


A  ROYAL  GOVERNOR  25 

29  And  you  are  upon  all  Occasions  to  send  unto  Our  Com- 
missioners for  Trade  and  plantations  only,  a  particular  Account 
of  all  your  proceedings  and  of  the  Condition  of  Affairs  within 
your  Government.  .  .  . 


CHAPTER  IV 

ROYAL   GOVERNOR  AND   REPRESENTATIVE   ASSEMBLY 

The  provincial  governor,  as  Franklin  said,  had  two  masters:  by  virtue 
of  his  commission  he  was  the  agent  of  the  Crown  and  the  guardian  of 
imperial  interests;  yet  he  was  also  the  executive  head  of  the  provincial 
government  and  dependent  upon  local  support.  In  all  but  four  of  the 
colonies  the  governor  depended  for  his  salary  on  grants  of  the  assembly. 
In  Georgia  alone  he  was  paid  by  the  Crown.  In  Virginia  and  Maryland 
he  was  supported  by  permanent  grants;  in  North  Carolina,  his  salary  was 
derived  from  quit-rents.  The  century-long  struggle  between  Crown  and 
Parliament  was  repeated  in  many  ways  in  the  colonies  in  the  half-century 
before  the  Revolution.  Pitching  upon  the  old  maxim  that  a  redress  of 
grievances  must  precede  a  grant  of  supplies,  the  colonial  assemblies  ex- 
torted legislation  repeatedly  by  withholding  the  governor's  salary.  The 
encroachments  of  the  assemblies  upon  the  executive  and  the  evils  incident 
to  these  colonial  practices  are  vividly  set  forth  by  Thomas  Pownall,  at 
one  time  governor  of  Massachusetts  and  later  of  South  Carolina. 

8.  The  Points  at  Issue  between  tJie  Colonies  and  tJie  Crown} 

The  King's  commission  to  his  governor,  which  grants  the 
power  of  government,  and  directs  the  calHng  of  a  legislature, 
and  the  estabhshing  courts,  at  the  same  time  that  it  fixes  the 
governor's  power,  according  to  the  several  powers  and  direc- 
tions granted  and  appointed  by  the  commission  and  instruc- 
tions, adds,  "and  by  such  further  powers,  instructions,  and 
authorities,  as  shall,  at  any  time  hereafter,  be  granted  or 
appointed  you,  under  our  signet  or  sign  manual,  or  by  our 
order  in  our  privy  council."  It  should  here  seem,  that  the 
same  power  which  framed  the  commission,  with  this  clause  in 
it,  could  also  issue  its  future  orders  and  instructions  in  conse- 
quence thereof:  but  the  people  of  the  colonies  say,  that  the 
inhabitants  of  the  colonies  are  entitled  to  all  the  privileges  of 
Englishmen;  that  they  have  a  right  to  participate  in  the  legis- 
lative power;  and  that  no  commands  of  the  crown,  by  orders  in 
council,  instructions,  or  letters  from  Secretaries  of  State,  are 
^  Pownall,  Administration  of  the  Colonies  (1765),  39-47  passim. 


GOVERNOR  AND  ASSEMBLY  27 

binding  upon  them,  further  than  they  please  to  acquiesce  under 
such,  and  conform  their  own  actions  thereto;  that  they  hold  this 
right  of  legislature,  not  derived  from  the  grace  and  will  of  the 
crown,  and  depending  on  the  commission  which  continues  at 
the  will  of  the  crown;  that  this  right  is  inherent  and  essential 
to  the  community,  as  a  community  of  Englishmen:  and  that 
therefore  they  must  have  all  the  rights,  privileges,  and  full  and 
free  exercise  of  their  own  will  and  liberty  in  making  laws,  which 
are  necessary  to  that  act  of  legislation,  —  uncontrouled  by  any 
power  of  the  crown,  or  of  the  governor,  preventing  or  suspend- 
ing that  act;  and,  that  the  clause  in  the  commission,  directing 
the  governor  to  call  together  a  legislature  by  his  writs,  is  de- 
clarative and  not  creative;  and  therefore  he  is  directed  to  act 
conformably  to  a  right  actually  already  existing  in  the  people, 
&c.  .  .  . 

Every  subject,  born  within  the  realm,  under  the  freedom  of 
the  Government  of  Great  Britain,  or  by  adoption  admitted  to 
the  same,  has  an  essential  indefeasible  right  to  be  governed, 
under  such  a  mode  of  government  as  has  the  unrestrained 
exercise  of  all  those  powers  which  form  the  freedom  and  rights 
of  the  constitution;  and  therefore,  "  the  crown  cannot  establish 
any  colony  upon  —  or  contract  it  within  a  narrower  scale  than 
the  subject  is  entitled  to,  by  the  great  charter  of  England." 
The  government  of  each  colony  must  have  the  same  powers, 
and  the  same  extent  of  powers  that  the  government  of  Great 
Britain  has,  —  and  must  have,  while  it  does  not  act  contrary 
to  the  laws  of  Great  Britain,  the  same  freedom  and  independ- 
ence of  legislature,  as  the  parliament  of  Great  Britain  has. 
This  right  (say  they)  is  founded,  not  only  in  the  general  prin- 
ciples of  the  rights  of  a  British  subject,  but  is  actually  declared, 
confirmed,  or  granted  to  them  in  the  commissions  and  charters 
which  gave  the  particular  frame  of  their  respective  constitu- 
tions. If  therefore,  in  the  first  original  establishment,  Hke  the 
original  contract,  they  could  not  be  established  upon  any  scale 
short  of  the  full  and  compleat  scale  of  the  powers  of  the  British 
government,  —  nor  the  legislature  be  established  on  any  thing 
less  than  the  whole  legislative  power;  much  less  can  this  power 


28    FOUNDATIONS  OF  AMERICAN  POLITY 

of  government  and  legislature,  thus  established,  be  governed, 
directed,  restrained  or  restricted,  by  any  posterior  instructions 
or  commands  by  the  letters  of  Secretaries  of  State.  But  upon 
the  supposition,  that  a  kind  of  general  indetermined  power  in 
the  crown,  to  superadd  instructions  to  the  commissions  and 
charter  be  admitted,  where  the  Colonists  do  not  make  a  ques- 
tion of  the  case  wherein  it  is  exerted,  yet  there  are  particular 
cases  wherein  both  directive  and  restrictive  instructions  are 
given,  and  avowedly  not  admitted  by  the  Colonists.  It  is  a 
standing  instruction,  as  a  security  of  the  dependence  of  the 
government  of  the  colonies  on  the  mother  country,  that  no 
acts  wherein  the  King's  Rights,  or  the  rights  of  the  mother 
country  or  of  private  persons  can  be  afifected,  shall  be  enacted 
into  a  law  without  a  clause  suspending  the  effect  thereof,  till 
his  Majesty's  pleasure  shall  be  known.  This  suspending  clause 
is  universally  rejected  on  the  principles  above,  because  such 
suspension  disfranchises  the  inherent  full  power  of  legislature, 
which  they  claim  by  their  rights  to  the  British  liberties,  and 
by  the  special  declarations  of  such  in  their  charters.  It  does 
not  remove  this  difl&culty  by  saying,  that  the  crown  has  already 
in  its  hands  the  power  of  fixing  this  point,  by  the  effect  of  its 
negative  given  to  its  governor.  It  is  said,  that  if  the  crown 
should  withdraw  that  instruction,  which  allows  certain  bills 
to  be  passed  into  laws  with  a  suspending  clause,  which  instruc- 
tion is  not  meant  as  a  restriction  upon,  but  an  indulgence  to 
the  legislatures;  that  if  the  crown  should  withdraw  this  instruc- 
tion, and  peremptorily  restrain  its  governor  from  enacting 
laws,  under  such  circumstances  as  the  wisdom  of  government 
cannot  admit  of,  that  then  these  points  are  actually  fixed  by  the 
true  constitutional  power;  but  whereever  it  is  so  said,  I  must 
repeat  my  idea,  that  this  does  not  remove  the  difficulty.  For 
waving  the  doubt  which  the  Colonists  might  raise,  especially 
in  the  charter  colonies,  how  far  the  governor  ought,  or  ought 
not,  to  be  restricted  from  giving  his  assent  in  cases  contrary 
only  to  instructions,  and  not  to  the  laws  of  Great  Britain; 
waving  this  point,  let  administration  consider  the  effects  of 
this  measure.   In  cases  where  the  bills,  offered  by  the  two 


GOVERNOR  AND  ASSEMBLY  29 

branches,  are  for  providing  laws,  absolutely  necessary  to  the 
continuance,  support,  and  exercise  of  government,  and  where 
yet  the  orders  of  the  crown,  and  the  sense  of  the  people,  are  so 
widely  different  as  to  the  mode,  that  no  agreement  can  ever 
be  come  to  in  these  points.  —  Is  the  government  and  adminis- 
tration of  the  government  of  the  colonies  to  be  suspended? 
The  interest,  perhaps  the  being  of  the  plantations,  to  be  haz- 
arded by  this  obstinate  variance,  and  can  the  exercise  of  the 
crown's  negative,  in  such  emergencies,  and  with  such  effect, 
ever  be  taken  up  as  a  measure  of  administration?  And  when 
every  thing  is  thrown  into  confusion,  and  abandoned  even  to 
ruin  by  such  measure,  will  administration  justify  itself  by  say- 
ing, that  it  is  the  fault  of  the  Colonists?  On  the  contrary,  this 
very  state  of  the  case  shows  the  necessity  of  some  other 
remedy.  .  .  . 

In  the  course  of  examining  these  matters,  will  arise  to  consid- 
eration the  following  very  material  point.  As  a  principal  tie  of 
the  subordination  of  the  legislatures  of  the  colonies  on  the 
government  of  the  mother  country,  they  are  bound  by  their 
constitutions  and  charters,  to  send  all  their  acts  of  legislature 
to  England,  to  be  confirmed  or  abrogated  by  the  crown;  but 
if  any  of  the  legislatures  should  be  found  to  do  almost  every 
act  of  legislature,  by  votes  or  orders,  even  to  the  repealing  the 
effects  of  acts,  suspending  establishments  of  pay,  paying  ser- 
vices, doing  chancery  and  other  judicatory  business:  if  matters 
of  this  sort,  done  by  these  votes  and  orders,  never  reduced  into 
the  form  of  an  act,  have  their  effect  without  ever  being  sent 
home  as  acts  of  legislature,  or  submitted  to  the  allowance  or 
disallowance  of  the  crown:  If  it  should  be  found  that  many, 
or  any  of  the  legislatures  of  the  colonies  carry  the  powers  of 
legislature  into  execution,  independent  of  the  crown  by  this 
device,  —  it  will  be  a  point  to  be  determined  how  far,  in  such 
cases,  the  subordination  of  the  legislatures  of  the  colonies  to 
the  government  of  the  mother  countr}'^  is  maintained  or  sus- 
pended;—  or  if,  from  emergencies  arising  in  these  govern- 
ments, this  device  is  to  be  admitted,  the  point,  how  far  such  is 
to  be  admitted,  ought  to  be  determined;  and  the  validity  of 


^o    FOUNDATIONS  OF  AMERICAN  POLITY 

these  votes  and  orders,  these  Senatus  Consulta  so  far  declared. 
For  a  point  of  such  great  importance  in  the  subordination  of 
the  colony  legislatures,  and  of  so  questionable  a  cast  in  the 
valid  exercise  of  this  legislative  power,  ought  no  longer  to 
remain  in  question.  .  .  . 

9.  ^^ Every  Proprietary  Governor  has  Two  Masters."^ 

It  is  by  this  Time  apparent  enough,  that  tho'  the  proprietary 
and  popular  interests  spring  from  one  and  the  same  Source, 
they  divide  as  they  descend :  That  every  proprietary  Governor, 
for  this  Reason,  has  two  Masters;  one  who  gives  him  his  Com- 
mission, and  one  who  gives  him  his  Pay:  That  he  is  on  his  good 
Behaviour  to  both:  That  if  he  does  not  fulfil  with  Rigour  every 
proprietary  Command,  however  injurious  to  the  Province  or 
offensive  to  the  Assembly,  he  is  recall'd:  That  if  he  does  not 
gratify  the  Assembly  in  what  they  think  they  have  a  right  to 
claim,  he  is  certain  to  live  in  perpetual  Broils,  tho'  uncertain 
whether  he  shall  be  enabled  to  live  at  all.  And  that,  upon  the 
whole,  to  be  a  Governor  upon  such  Terms,  is  to  be  the  most 
wretched  Thing  alive. 

Sir  William  Keith  could  not  be  ignorant  of  this:  And  there- 
fore, however  he  was  instructed  here  at  Home,  either  by  his 
Principal  or  the  Lords  of  Trade,  resolv'd  to  govern  himself 
when  he  came  upon  the  Spot,  by  the  governing  Interest  there. 
—  So  that  his  Administration  was  wholly  different  from  that  of 
his  two  Predecessors. 

With  as  particular  an  Eye  to  his  own  particular  Emolument 
he  did  indeed  make  his  first  Address  to  the  Assembly.  —  But 
then  all  he  said  was  in  popular  Language.  —  He  did  not  so 
much  as  name  the  Proprietary:  And  his  Hints  were  such  as 
could  not  be  misunderstood,  that  in  case  they  would  pay  him 
well,  he  would  serve  them  well. 

The  Assembly,  on  the  other  Hand,  had  Sense  enough  to  dis- 
cern, that  this  was  all  which  could  be  required  of  a  Man  who 
had  a  Family  to  maintain  with  some  Degree  of  Splendor,  and 

^  Benj.  Franklin,  An  Historical  Review  of  the  Constitution  and  Govern- 
ment cj  Pennsylvania,  (1759)  72-73. 


GOVERNOR  AND  ASSEMBLY  31 

who  was  no  richer  than  Plantation  Governors  usually  are :  In 
short,  they  believed  in  him,  were  liberal  to  him,  and  the  Returns 
he  annually  made  them  were  suitable  to  the  Confidence  they 
plac'd  in  him.  —  So  that  the  proper  Operation  of  one  Master- 
Spring  kept  the  whole  Machine  of  Government,  for  a  consid- 
erable Period  of  Time,  in  a  more  consistent  Motion  than  it  had 
ever  known  before. 

Of  all  poHtical  Cements  reciprocal  Interest  is  the  strongest: 
And  the  Subjects  Money  is  never  so  well  disposed  of,  as  in  the 
Maintenance  of  Order  and  Tranquility,  and  the  Purchase  of 
good  Laws;  for  which  Felicities  Keith's  Administration  was 
deservedly  memorable.  .  .  . 

10.  The  Power  of  the  Purse} 

The  crown  does,  by  its  instructions  to  its  governors,  order 
them  to  require  of  the  legislature  a  permanent  support.  This 
order  of  the  crown  is  generally,  if  not  universally  rejected,  by 
the  legislatures  of  the  colonies.  The  assemblies  quote  the  pre- 
cedents of  the  British  constitution,  and  found  all  the  rights  and 
privileges  which  they  claim  on  the  principles  thereof.  They 
allow  the  truth  and  fitness  of  this  principle  in  the  British  con- 
stitution, where  the  executive  power  of  the  crown  is  immedi- 
ately administred  by  the  King's  Majesty;  yet  say,  under  the 
circumstances  in  which  they  find  themselves,  that  there  is  no 
other  measure  left  to  them  to  prevent  the  misapph cations  of 
public  money,  than  by  an  annual  voting  and  appropriation  of 
the  salaries  of  the  governor  and  other  civil  officers,  issuing  from 
monies  lodged  in  the  hands  of  a  provincial  treasurer  appointed 
by  the  assembhes:  For  in  these  subordinate  governments, 
remote  from  his  Majesty's  immediate  influence,  administred 
oftentimes  by  necessitous  and  rapacious  governors  who  have 
no  natural,  altho'  they  have  a  political  connection  with  the 
country,  experience  has  shewn  that  such  governors  have  mis- 
applied the  monies  raised  for  the  support  of  government,  so 
that  the  civil  officers  have  been  left  unpaid,  even  after  having 
been  provided  for  by  the  assembly.  The  point  then  of  this  very 
1  Pownall,  Administration  of  the  Colonies  (1765),  50-53- 


32    FOUNDATIONS  OF  AMERICAN  POLITY 

important  question  comes  to  this  issue,  whether  the  incon- 
veniencies  arising,  and  experienced  by  some  instances  of  mis- 
applications of  appropriations  (for  which  however  there  are  in 
the  King's  courts  of  law,  due  and  sufficient  remedies  against 
the  offender)  are  a  sufficient  reason  and  ground  for  estabUshing 
a  measure  so  directly  contrary  to  the  British  constitution:  and 
whether  the  inconveniencies  to  be  traced  in  the  history  of  the 
colonies,  through  the  votes  and  journals  of  their  legislatures, 
in  which  the  support  of  governors,  judges,  and  officers  of  the 
crown  will  be  found  to  have  been  withheld  or  reduced  on  occa- 
sions, where  the  assemblies  have  supposed  that  they  have  had 
reason  to  disapprove  the  nomination,  —  or  the  person,  or  his 
conduct;  — whether,  I  say,  these  inconveniencies  have  not 
been  detrimental,  and  injurious  to  government;  and  whether, 
instead  of  these  colonies  being  dependent  on,  and  governed 
under,  the  officers  of  the  crown,  the  scepter  is  not  reversed, 
and  the  officers  of  the  crown  dependent  on  and  governed  by  the 
assemblies,  as  the  Colonists  themselves  allow,  that  this  measure 
"renders  the  governor,  and  all  the  other  servants  of  the  crown, 
dependent  on  the  assembly."  This  is  mere  matter  of  experi- 
ence; and  the  fact,  when  duly  enquired  into,  must  speak  for 
itself:  —  but  the  operation  of  this  measure  does  not  end  here; 
it  extends  to  the  assuming  by  the  assembUes  the  actual  execu- 
tive part  of  the  government  in  the  case  of  the  revenue,  than 
which  nothing  is  more  clearly  and  unquestionably  settled  in 
the  crown.  In  the  colonies  the  treasurer  is  solely  and  entirely 
a  servant  of  the  assembly  or  general  court;  and  although  the 
monies  granted  and  appropriated  be,  or  ought  to  be,  granted 
to  the  crown  on  such  appropriation,  the  treasurer  is  neither 
named  by  the  crown,  nor  its  governor,  nor  gives  security  to  the 
crown  or  to  the  Lord  High  Treasurer,  (which  seems  the  most 
proper)  nor  in  many  of  the  colonies,  is  to  obey  the  governor's 
warrant  in  the  issue,  nor  accounts  in  the  auditor's  office,  nor  in 
any  one  colony  is  it  admitted,  that  he  is  liable  to  such  account. 
In  consequence  of  this  supposed  necessity,  for  the  assembly's 
taking  upon  them  the  administration  of  the  treasury  and 
revenue,  the  governor  and  servants  of  the  crown,  in  the  ordin- 


GOVERNOR  AND  ASSEMBLY  33 

ary  revenue  of  government,  are  not  only  held  dependent  on 
the  assembly,  but  all  services,  where  special  appropriations  are 
made  for  the  extraordinaries  which  such  services  require,  are 
actually  executed  and  done  by  commissioners  appointed  by 
the  assembly,  to  whose  disposition  such  appropriations  are 
made  liable.  It  would  be  perhaps  invidious,  and  might  tend 
to  prejudging  on  points  which  ought  very  seriously  and  dis- 
passionately to  be  examined,  if  I  were  here  to  point  out  in  the 
several  instances  of  the  actual  execution  of  this  assumed  power, 
how  almost  every  executive  power  of  the  crown  lodged  in  its 
governor,  is,  where  money  is  necessary,  thus  exercised  by  the 
assembly  and  its  commissioners.  .  .  , 


CHAPTER  V 

THE   UNION    OF   THE   AMERICAN    COLONIES 

The  coercive  acts  of  1774  furnished  the  occasion  for  the  First  Conti- 
nental Congress.  The  suggestion  of  an  annual  congress  came  from  the 
Burgesses  of  Virginia.  The  House  of  Representatives  of  Massachusetts 
gave  definiteness  to  the  project  by  naming  a  time  and  place  of  meeting. 
The  two  notable  acts  of  the  First  Congress  are  the  Declaration  of  Rights 
and  Grievances  and  the  Association.  The  latter  is  the  more  important 
document  inasmuch  as  it  points  to  the  assumption  of  revolutionary 
authority  by  the  Congress.  The  rapid  march  of  events  forced  the  Second 
Continental  Congress  to  assume  powers  far  in  excess  of  the  instructions 
given  to  the  delegates.  The  resolutions  adopted  in  June,  1775,  indicate 
that  the  Congress  was  already  acting  as  a  de  facto  government. 

II.  Credentials  of  the  Delegates  from  Massachusetts  to  the  First 
Continental  Congress} 

In  the  House  of  Representatives, 

June  17th,  1774. 

This  house  ha\nng  duly  considered,  and  being  deeply 
affected  with  the  unhappy  differences  which  have  long  sub- 
sisted and  are  encreasing  between  Great  Britain  and  the  Amer- 
ican Colonies,  do  resolve,  that  a  meeting  of  Committees  from 
the  several  Colonies  on  this  Continent  is  highly  expedient  and 
necessary,  to  consult  upon  the  present  state  of  the  Colonies, 
and  the  miseries  to  which  they  are  and  must  be  reduced  by  the 
operation  of  certain  acts  of  Parliament  respecting  America, 
and  to  deliberate  and  determine  upon  wise  and  proper  measures, 
to  be  by  them  recommended  to  all  the  Colonies,  for  the 
recovery  and  establishment  of  their  just  rights  &  liberties, 
civil  &  religious,  and  the  restoration  of  union  &  harmony  be- 
tween Great  Britain  and  the  Colonies,  most  ardently  desired 
by  all  good  men.  Therefore,  Resolved,  That  the  Hon.^'^ 
James  Bowdoin,  esqF.,  the  Hon^^  Thomas  Gushing,  esq'.,  Mr. 
Samuel  Adams,  John  Adams,  &  Robert  Treat  Paine,  esq"?.,  be, 

*  Journals  of  the  Continental  Congress  (Ford  ed.),  i,  15-16. 


UNION  OF  THE  AMERICAN  COLONIES    35 

and  they  are  hereby  appointed  a  Committee  on  the  part  of 
this  province,  for  the  purposes  aforesaid,  any  three  of  whom 
to  be  a  quorum,  to  meet  such  committees  or  delegates  from  the 
other  Colonies  as  have  been  or  may  be  appointed,  either  by 
their  respective  houses  of  Burgesses,  or  representatives,  or  by 
convention,  or  by  the  committees  of  correspondence  appointed 
by  the  respective  houses  of  Assembly,  in  the  city  of  Philadel- 
phia, or  any  other  place  that  shall  be  judged  most  suitable  by 
the  Committee,  on  the  first  day  of  September  next;  &  that  the 
Speaker  of  the  House  be  directed,  in  a  letter  to  the  speakers  of 
the  house  of  Burgesses  or  representatives  in  the  several  Colo- 
nies, to  inform  them  of  the  substance  of  these  Resolves. 
Attested: 

Samxtel  Adams,  Clerk. 

12.  The  Association} 

We,  his  majesty's  most  loyal  subjects,  the  delegates  of 
the  several  colonies  of  New-Hampshire,  Massachusetts-Bay, 
Rhode-Island,  Connecticut,  New-York,  New- Jersey,  Pennsyl- 
vania, the  three  lower  counties  of  Newcastle,  Kent  and  Sussex 
on  Delaware,  Maryland,  Virginia,  North-CaroHna,  and  South- 
Carolina,  deputed  to  represent  them  in  a  continental  Congress, 
held  in  the  city  of  Philadelphia,  on  the  fifth  day  of  September, 
1774,  avowing  our  allegiance  to  his  majesty,  our  affection  and 
regard  for  our  fellow-subjects  in  Great  Britain  and  elsewhere, 
affected  with  the  deepest  anxiety,  and  most  alarming  appre- 
hensions, at  those  grievances  and  distresses,  with  which  his 
Majesty's  American  subjects  are  oppressed;  and  having  taken 
under  our  most  serious  deliberation,  the  state  of  the  whole 
continent,  find,  that  the  present  unhappy  situation  of  our 
affairs  is  occasioned  by  a  ruinous  system  of  colony  administra- 
tion, adopted  by  the  British  ministry  about  the  year  1763,  evi- 
dently calculated  for  inslaving  these  colonies,  and,  with  them, 
the  British  Empire.  In  prosecution  of  which  system,  various 
acts  of  parliament  have  been  passed,  for  raising  a  revenue  in 

1  October  20,  1774.  Journals  of  the  Continental  Congress  (Ford  ed.),  i, 
75-80. 


36    FOUNDATIONS  OF  AMERICAN  POLITY 

America,  for  depriving  the  American  subjects,  in  many  in- 
stances, of  the  constitutional  trial  by  jury,  exposing  their  lives 
to  danger,  by  directing  a  new  and  illegal  trial  beyond  the  seas, 
for  crimes  alleged  to  have  been  committed  in  America:  and  in 
prosecution  of  the  same  system,  several  late,  cruel  and  oppres- 
sive acts  have  been  passed,  respecting  the  town  of  Boston  and 
the  Massachusetts-Bay,  and  also  an  act  for  extending  the 
province  of  Quebec,  so  as  to  border  on  the  western  frontiers  of 
these  colonies,  estabhshing  an  arbitrary  government  therein, 
and  discouraging  the  settlement  of  British  subjects  in  that 
wide  extended  country;  thus,  by  the  influence  of  civil  princi- 
ples and  ancient  prejudices,  to  dispose  the  inhabitants  to  act 
with  hostility  against  the  free  Protestant  colonies,  whenever  a 
wicked  ministry  shall  chuse  so  to  direct  them. 

To  obtain  redress  of  these  grievances,  which  threaten  destruc- 
tion to  the  lives,  Hberty,  and  property  of  his  majesty's  subjects, 
in  North- America,  we  are  of  opinion,  that  a  non-importation, 
non-consumption,  and  non-exportation  agreement,  faithfully 
adhered  to,  will  prove  the  most  speedy,  effectual,  and  peace- 
able measure:  and,  therefore,  we  do,  for  ourselves,  and  the 
inhabitants  of  the  several  colonies,  whom  we  represent,  firmly 
agree  and  associate,  under  the  sacred  ties  of  virtue,  honour  and 
love  of  our  country,  as  follows: 

1.  That  from  and  after  the  first  day  of  December  next,  we 
will  not  import,  into  British  America,  from  Great-Britain  or 
Ireland,  any  goods,  wares,  or  merchandize  whatsoever,  or  from 
any  other  place,  any  such  goods,  wares,  or  merchandize,  as 
shall  have  been  exported  from  Great-Britain  or  Ireland;  nor 
will  we,  after  that  day,  import  any  East-India  tea  from  any  part 
of  the  world;  nor  any  molasses,  syrups,  paneles,  coffee,  or  pi- 
mento, from  the  British  plantations  or  from  Dominica;  nor 
wines  from  Madeira,  or  the  Western  Islands;  nor  foreign 
indigo. 

2.  We  will  neither  import  nor  purchase,  any  slave  imported 
after  the  first  day  of  December  next;  after  which  time,  we 
will  wholly  discontinue  the  slave  trade,  and  will  neither  be 
concerned  in  it  ourselves,  not  will  we  hire  our  vessels,  nor  sell 


UNION  OF  THE  AMERICAN  COLONIES    37 

our  commodities  or  manufactures  to  those  who  are  concerned 
in  it. 

3.  As  a  non-consumption  agreement,  strictly  adhered  to, 
will  be  an  effectual  security  for  the  observation  of  the  non- 
importation, we,  as  above,  solemnly  agree  and  associate,  that 
from  this  day,  we  will  not  purchase  or  use  any  tea,  imported  on 
account  of  the  East-India  company,  or  any  on  which  a  duty 
hath  been  or  shall  be  paid;  and  from  and  after  the  first  day  of 
March  next,  we  will  not  purchase  or  use  any  East-India  tea 
whatever;  nor  will  we,  nor  shall  any  person  for  or  under  us, 
purchase  or  use  any  of  those  goods,  wares,  or  merchandize, 
we  have  agreed  not  to  import,  which  we  shall  know,  or  have 
cause  to  suspect,  were  imported  after  the  first  day  of  Decem- 
ber, except  such  as  come  under  the  rules  and  directions  of  the 
tenth  article  hereafter  mentioned. 

4.  The  earnest  desire  we  have  not  to  injure  our  fellow- 
subjects  in  Great-Britain,  Ireland,  or  the  West-Indies,  induces 
us  to  suspend  a  non-exportation,  until  the  tenth  day  of  Sep- 
tember, 1775;  at  which  time,  if  the  said  acts  and  parts  of  acts 
of  the  British  parHament  herein  after  mentioned,  are  not 
repealed,  we  will  not  directly  or  indirectly,  export  any  mer- 
chandize or  commodity  whatsoever  to  Great-Britain,  Ireland, 
or  the  West-Indies,  except  rice  to  Europe. 

5.  Such  as  are  merchants,  and  use  the  British  and  Irish 
trade,  will  give  orders,  as  soon  as  possible,  to  their  factors, 
agents  and  correspondents,  in  Great-Britain  and  Ireland,  not  to 
ship  any  goods  to  them,  on  any  pretence  whatsoever,  as  they 
carmot  be  received  in  America;  and  if  any  merchant,  residing 
in  Great-Britain  or  Ireland,  shall  directly  or  indirectly  ship  any 
goods,  wares  or  merchandize,  for  America,  in  order  to  break 
the  said  non-importation  agreement,  or  in  any  manner  con- 
travene the  same,  on  such  unworthy  conduct  being  well 
attested,  it  ought  to  be  made  pubHc;  and,  on  the  same  being 
so  done,  we  will  not,  from  henceforth,  have  any  commercial 
connexion  with  such  merchant. 

6.  That  such  as  are  owners  of  vessels  will  give  positive  orders 
to  their  captains,  or  masters,  not  to  receive  on  board  their 

62230 


38    FOUNDATIONS  OF  AMERICAN  POLITY 

vessels  any  goods  prohibited  by  the  said  non-importation  agree- 
ment, on  pain  of  immediate  dismission  from  their  service. 

7.  We  will  use  our  utmost  endeavours  to  improve  the  breed 
of  sheep,  and  increase  their  number  to  the  greatest  extent; 
and  to  that  end,  we  will  kill  them  as  seldom  as  may  be,  espe- 
cially those  of  the  most  profitable  kind;  nor  will  we  export  any 
to  the  West-Indies  or  elsewhere;  and  those  of  us,  who  are  or 
may  become  overstocked  with,  or  can  conveniently  spare  any 
sheep,  will  dispose  of  them  to  our  neighbours,  especially  to  the 
poorer  sort,  on  moderate  terms. 

8.  We  will,  in  our  several  stations,  encourage  frugaUty,  econ- 
omy, and  industry,  and  promote  agriculture,  arts  and  the  man- 
ufactures of  this  country,  especially  that  of  wool;  and  will  dis- 
countenance and  discourage  every-  species  of  extravagance  and 
dissipation,  especially  all  horse-racing,  and  all  kinds  of  gaming, 
cock-fighting,  exhibitions  of  shews,  plays,  and  other  expensive 
diversions  and  entertainments;  and  on  the  death  of  any  rela- 
tion or  friend,  none  of  us,  or  any  of  our  families,  will  go  into 
any  further  mourning-dress,  than  a  black  crape  or  ribbon  on 
the  arm  or  hat,  for  gentlemen,  and  a  black  ribbon  and  necklace 
for  ladies,  and  we  will  discontinue  the  giving  of  gloves  and 
scarves  at  funerals. 

9.  Such  as  are  venders  of  goods  or  merchandize  will  not  take 
advantage  of  the  scarcity  of  goods,  that  may  be  occasioned 
by  this  association,  but  will  sell  the  same  at  the  rates  we  have 
been  respectively  accustomed  to  do,  for  twelve  months  last 
past.  —  And  if  any  vender  of  goods  or  merchandize  shall  sell 
such  goods  on  higher  terms,  or  shall,  in  any  manner,  or  by  any 
device  whatsoever,  violate  or  depart  from  this  agreement,  no 
person  ought,  nor  will  any  of  us  deal  with  any  such  person,  or 
his  or  her  factor  or  agent,  at  any  time  thereafter,  for  any 
commodity  whatever. 

10.  In  case  any  merchant,  trader,  or  other  person,  shall  im- 
port any  goods  or  merchandize,  after  the  first  day  of  December, 
and  before  the  first  day  of  February  next,  the  same  ought 
forthwith,  at  the  election  of  the  owner,  to  be  either  re-shipped 
or  delivered  up  to  the  committee  of  the  county  or  town, 


I 


UNION  OF  THE  AMERICAN  COLONIES    39 

wherein  they  shall  be  imported,  to  be  stored  at  the  risque  of 
the  importer,  until  the  non-importation  agreement  shall  cease, 
or  be  sold  under  the  direction  of  the  committee  aforesaid ;  and 
in  the  last-mentioned  case,  the  owner  or  owners  of  such  goods 
shall  be  reimbursed  out  of  the  sales,  the  first  cost  and  charges, 
the  profit,  if  any,  to  be  applied  towards  reheving  and  employ- 
ing such  poor  inhabitants  of  the  town  of  Boston,  as  are  immedi- 
ate sufferers  by  the  Boston  port-bill;  and  a  particular  account 
of  all  goods  so  returned,  stored,  or  sold,  to  be  inserted  in  the 
public  papers;  and  if  any  goods  or  merchandizes  shall  be  im- 
ported after  the  said  first  day  of  February,  the  same  ought 
forthwith  to  be  sent  back  again,  without  breaking  any  of  the 
packages  thereof. 

11.  That  a  committee  be  chosen  in  every  county,  city,  and 
town,  by  those  who  are  qualified  to  vote  for  representatives  in 
the  legislature,  whose  business  it  shall  be  attentively  to  observe 
the  conduct  of  all  persons  touching  this  association;  and  when 
it  shall  be  made  to  appear,  to  the  satisfaction  of  a  maj  »rity  of 
any  such  committee,  that  any  person  within  the  Hmits  uf  their 
appointment  has  violated  this  association,  that  such  majority 
do  forthwith  cause  the  truth  of  the  case  to  be  published  in  the 
gazette;  to  the  end,  that  all  such  foes  to  the  rights  of  British- 
America  may  be  pubhcly  known,  and  universally  coniemned 
as  the  enemies  of  American  liberty;  and  thenceforth  we  re- 
spectively will  break  off  all  dealings  with  him  or  her. 

12.  That  the  committee  of  correspondence,  in  the  respective 
colonies,  do  frequently  inspect  the  entries  of  their  custom- 
houses, and  inform  each  other,  from  time  to  time,  of  tlie  true 
state  thereof,  and  of  every  other  material  circumstance  that 
may  occur  relative  to  this  association. 

13.  That  all  manufactures  of  this  country  be  sold  at  reason- 
able prices,  so  that  no  undue  advantage  be  taken  of  a  future 
scarcity  of  goods. 

14.  And  we  do  further  agree  and  resolve,  that  we  will  have 
no  trade,  commerce,  dealings  or  intercourse  whatsoever,  with 
any  colony  or  province,  in  North-America,  which  shall  not 
accede  to,  or  which  shall  hereafter  violate  this  association,  but 


40    FOUNDATIONS  OF  AMERICAN  POLITY 

will  hold  them  as  unworthy  of  the  rights  of  freemen,  and  as 
inimical  to  the  liberties  of  their  country. 

And  we  do  solemnly  bind  ourselves  and  our  constituents, 
under  the  ties  aforesaid,  to  adhere  to  this  association,  until 
such  parts  of  the  several  acts  of  parliament,  passed  since  the 
close  of  the  last  war,  as  impose  or  continue  duties  on  tea,  wine, 
molasses,  syrups,  paneles,  coffee,  sugar,  pimento,  indigo,  for- 
eign paper,  glass,  and  painters'  colours,  imported  into  America, 
and  extend  the  powers  of  the  admiralty  courts  beyond  their 
ancient  limits,  deprive  the  American  subject  of  trial  by  jury, 
authorize  the  judge's  certificate  to  indemnify  the  prosecutor 
from  damages,  that  he  might  otherwise  be  liable  to,  from  a 
trial  by  his  peers,  require  oppressive  security  from  a  claimant 
of  ships  or  goods  seized,  before  he  shall  be  allowed  to  defend  his 
property,  are  repealed.  —  And  until  that  part  of  the  act  of  the 
12.  G.  3.  ch.  24.  entitled,  "An  act  for  the  better  securing  his 
majesty's  dock-yards,  magazines,  ships,  ammunition,  and 
stores,"  by  which  any  persons  charged  with  committing  any 
of  the  offences  therein  described,  in  America,  may  be  tried  in 
any  shire  or  county  within  the  realm,  is  repealed  —  and  until 
the  four  acts,  passed  the  last  session  of  parliament,  viz.  that 
for  stopping  the  port  and  blocking  up  the  harbour  of  Boston  — 
that  for  altering  the  charter  and  government  of  the  Massa- 
chusetts-Bay—  and  that  which  is  entitled,  "An  act  for  the 
better  administration  of  justice,  &c."  —  and  that  "  For  ex- 
tending the  limits  of  Quebec,  &c."  are  repealed.  And  we 
recommend  it  to  the  provincial  conventions,  and  to  the  com- 
mittees in  the  respective  colonies,  to  establish  such  farther 
regulations  as  they  may  think  proper,  for  carrying  into  execu- 
tion this  association.  .  .  . 

13.  Resolutions  of  the  Second  Continental  Congress} 
June  3,  1775. 

Upon  motion  Resolved,  That  a  committee  be  appointed  for 
the  purpose  of  borrowing  the  sum  of  six  thousand  pounds  for 

.  ^  Journals  oj  the  Continental  Congress  (Ford  ed.)  II,  79,  83-84,  89, 91. 


UNION  OF  THE  AMERICAN  COLONIES    41 

the  use  of  America;  for  the  repayment  of  which  with  interest, 
the  Congress  will  make  full  and  ample  provision,  and  that  the 
s**  com[mittee]  apply  the  s**  sum  of  money  to  the  purchase  of 
gunpowder  for  the  use  of  the  Continental  Army. 

June  9,  1775. 

The  report  of  the  committee,  on  the  Letter  from  the  conven- 
tion of  Massachusetts  bay,  being  again  read,  Congress  came  to 
the  following  resolution: 

Resolved,  That  no  obedience  being  due  to  the  Act  of  parlia- 
ment for  altering  the  charter  of  the  Colony  of  Massachusetts 
bay,  nor  to  a  Governor,  or  a  lieutenant-Governor,  who  will  not 
observe  the  directions  of,  but  endeavour  to  subvert  that  char- 
ter, the  govf.  and  heutenant-gov?"  of  that  Colony  are  to  be 
considered  as  absent,  and  these  offices  vacant;  and  as  there  is 
no  council  there,  and  the  inconveniences,  arising  from  the  sus- 
pension of  the  powers  of  Government,  are  intollerable,  espe- 
cially at  a  time  when  Gen'.  Gage  hath  actually  levied  war,  and 
is  carrying  on  hostilities,  against  his  Majesty's  peaceable  and 
loyal  subjects  of  that  Colony;  that,  in  order  to  conform,  as  near 
as  may  be,  to  the  spirit  and  substance  of  the  charter,  it  be 
recommended  to  the  provincial  Convention,  to  write  letters 
to  the  inhabitants  of  the  several  places,  which  are  intituled  to 
representation  in  Assembly,  requesting  them  to  chuse  such  rep- 
resentatives, and  that  the  Assembly,  when  chosen,  do  elect 
counsellors;  which  assembly  and  council  should  exercise  the 
powers  of  Government,  until  a  Governor,  of  his  Majesty's 
appointment,  will  consent  to  govern  the  colony  according  to  its 
charter. 

June  14,  1775. 

Resolved,  That  six  companies  of  expert  rifflemen,  be  immedi- 
ately raised  in  Pennsylvania,  two  in  Maryland,  and  two  in 
Virginia;  that  each  company  consist  of  a  captain,  three  lieu- 
tenants, four  Serjeants,  four  corporals,  a  drummer  or  trump- 
eter, and  sixty-eight  privates. 

That  each  company,  as  soon  as  compleated,  shall  march  and 


42    FOUNDATIONS  OF  AAIERICAN  POLITY 

join  the  army  near  Boston,  to  be  there  employed  as  light 
infantry,  under  the  command  of  the  chief  Officer  in  that  army. 

June  15,  1775. 

Resolved,  That  a  General  be  appointed  to  command  all  the 
continental  forces,  raised,  or  to  be  raised,  for  the  defence  of 
American  liberty. 

That  five  hundred  dollars,  per  month,  be  allowed  for  his  pay 
and  expences. 

The  Congress  then  proceed'^d  to  the  choice  of  a  general, 
II  by  ballot,  Hwhen  George  Washington,  Esq.  was  unanimously 
elected. 


CHAPTER  VI 

POLITICAL   DOCTRINES    OF   THE    REVOLUTIONARY   ERA 

The  American  revolutionists  borrowed  their  political  philosophy  largely 
from  John  Locke,  who  in  turn  was  the  exponent  of  the  doctrines  of  the 
English  Revolution  of  1688.  The  indebtedness  of  the  author  of  the  Decla- 
ration of  Independence  to  the  Treatises  on  Government  is  apparent  to 
everyone  who  has  compared  that  document  with  Locke's  chapter  on  "  the 
Dissolution  of  Governments."  The  bill  of  rights  prefixed  to  the  Mass- 
achusetts Constitution  of  1780  is  perhaps  the  most  complete  statement  of 
the  fundamental  civil  and  political  rights  to  which  men  of  the  revolution- 
ary era  laid  claim. 

14.  John  Locke  on  the  Dissolution  oj  Governments} 

The  reason  why  men  enter  into  society  is  the  preservation 
of  their  property;  and  the  end  while  they  choose  and  authorize 
a  legislative  is  that  there  may  be  laws  made,  and  rules  set,  as 
guards  and  fences  to  the  properties  of  all  the  society,  to  limit 
the  power,  and  moderate  the  dominion  of  every  part  and  mem- 
ber of  the  society.  For  since  it  can  never  be  supposed  to  be  the 
will  of  the  society  that  the  legislative  should  have  a  power  to 
destroy  that  which  everyone  designs  to  secure  by  entering  into 
society,  and  for  which  the  people  submitted  themselves  to 
legislators  of  their  own  making;  whenever  the  legislators 
endeavour  to  take  away  and  destroy  the  property  of  the 
people,  or  to  reduce  them  to  slavery  under  arbitrary  power, 
they  put  themselves  into  a  state  of  war  with  the  people,  who 
are  thereupon  absolved  from  any  farther  obedience,  and  are 
left  to  the  common  refuge  which  God  hath  provided  for  all  men 
against  force  and  violence.  Whensoever,  therefore,  the  legis- 
lative shall  transgress  this  fundamental  rule  of  society,  and 
either  by  ambition,  fear,  folly,  or  corruption,  endeavour  to 
grasp  themselves,  or  put  into  the  hands  of  any  other,  an  abso- 
lute power  over  the  lives,  liberties,  and  estates  of  the  people; 

^  John  Locke,  Two  Treatises  of  Government  (Morley's  Universal  Library), 
§§  222,  225. 


44    FOL-XDATIOXS  OF  AMERICAN  POLm' 

by  this  breach  of  trust  they  forfeit  the  power  the  people  had 
put  into  their  hands  for  quite  contrary  ends,  and  it  devolves 
to  the  people,  who  have  a  right  to  resume  their  original  liberty, 
and  by  the  establishment  of  a  new  legislative  (such  as  they 
shall  think  fit\  pro\-ide  for  their  own  safety  and  security, 
which  is  the  end  for  which  they  are  in  society.  What  I  have 
said  here  concerning  the  legislative  in  general  holds  true  also 
concerning  the  supreme  executor,  who  haNing  a  double  trust 
put  in  him.  both  to  have  a  part  in  the  legislative  and  the 
supreme  execution  of  the  law.  acts  against  both,  when  he 
goes  about  to  set  up  his  own  arbitran,-  will  as  the  law  of  the 
society.  .  .  . 

Such  revolutions  happen  not  upon  ever>-  little  mismanage- 
ment in  public  affairs.  Great  mistakes  in  the  ruHng  part,  many 
wrong  and  inconvenient  laws,  and  all  the  slips  of  human  frailty 
will  be  borne  by  the  people  without  mutiny  or  murmur.  But 
if  a  long  train  of  abuses,  prevarications,  and  artihces,  all  tend- 
ing the  same  way.  make  the  design  \-isible  to  the  people,  and 
they  caimot  but  feel  what  they  lie  under,  and  see  whither  they 
are  going,  it  is  not  to  be  wondered  that  they  should  then  rouse 
themselves,  and  endeavour  to  put  the  rule  into  such  hands 
which  may  secure  to  them  the  ends  for  which  government  was 
at  first  erected,  and  without  which,  ancient  names  and  specious 
forms  are  so  far  from  being  better,  that  they  are  much  worse 
than  the  state  of  Nature  or  pure  anarchy;  the  inconveniences 
being  all  as  great  and  as  near,  but  the  remedy  farther  off  and 
more  difficult. 

15.  The  Revolutwn  in  Xrw  Hampshire.^ 

In  Congress  at  Exeter. 

JuKUjry  5,  1776. 

Voted,  That  this  Congress  take  up  Ci\-il  Government  for 
this  colony  in  manner  and  form  following,  \iz. 

^^  e.  the  members  of  the  Congress  of  Xew  Hampshire,  chosen 
and  appointed  by  the  free  suffrages  of  the  people  of  said  colony, 
and  authorized  and  empowered  by  them  to  meet  together,  and 
^  Thorpe,  Federal  and  St^ik  Constitutions,  Vi,  2451- 


POLITICAL  DOCTRINES  OF  THE  ER.\   45 

use  such  means  and  pursue  such  measures  as  we  should  judge 
best  for  the  public  good;  and  in  particular  to  establish  some 
form  of  government,  provided  that  measure  should  be  recom- 
mended by  the  Continental  Congress:  And  a  recommendation 
to  that  purpose  having  been  transmitted  to  us  from  the  said 
Congress:  Have  taken  into  our  serious  consideration  the  un- 
happy circumstances,  into  which  this  colony  is  involved  by 
means  of  many  grievous  and  oppressive  acts  of  the  British 
Parliament,  depriving  us  of  our  natural  and  constitutional 
rights  and  privileges;  to  enforce  obedience  to  which  acts  a 
powerful  fleet  and  army  have  been  sent  to  this  country  by  the 
ministry  of  Great  Britain,  who  have  exercised  a  wanton  and 
cruel  abuse  of  their  power,  in  destroying  the  Hves  and  proper- 
ties of  the  colonists  in  many  places  with  fire  and  sword,  taking 
the  ships  and  lading  from  many  of  the  honest  and  industrious 
inhabitants  of  this  colony  employed  in  commerce,  agreeable 
to  the  laws  and  customs  a  long  time  used  here. 

The  sudden  and  abrupt  departure  of  his  Excellency  John 
Wentworth,  Esq.,  our  late  Governor,  and  several  of  the  Council, 
leaving  us  destitute  of  legislation,  and  no  executive  courts  being 
open  to  punish  criminal  offenders;  whereby  the  lives  and  prop- 
erties of  the  honest  people  of  this  colony  are  Hable  to  the  machi- 
nations and  evil  designs  of  wicked  men.  Therefore,  for  the 
preservation  of  peace  and  good  order,  and  for  the  security  of 
the  lives  and  properties  of  the  inhabitants  of  this  colony,  we 
conceive  ourselves  reduced  to  the  necessity  of  establishing  A 
Form  of  Government  to  continue  during  the  present  unhappy 
and  unnatural  contest  with  Great  Britain;  Protesting  and  De- 
claring that  we  neaver  sought  to  throw  off  our  dependence 
upon  Great  Britain,  but  felt  ourselves  happy  under  her  pro- 
tection, while  we  could  enjoy  our  constitutional  rights  and 
privileges.  And  that  we  shall  rejoice  if  such  a  reconciliation 
between  us  and  our  parent  State  can  be  effected  as  shall  be 
approved  by  the  Continental  Congress,  in  whose  prudence  and 
wisdom  we  confide. 

Accordingly  pursuant  to  the  trust  rep>osed  in  us,  We  do 
Resolve,  that  this  Congress  assume  the  name,  power  and 


46    FOUNDATIONS  OF  AMERICAN  POLITY 

authority  of  a  house  of  Representatives  or  Assembly  for  the 
Colony  of  New-Hampshire.  .  .  . 

i6.  The  Declaration  of  Independence.''- 

When  in  the  Course  of  human  events,  it  becomes  necessary 
for  one  people  to  dissolve  the  poHtical  bands  which  have  con- 
nected them  with  another,  and  to  assume  among  the  Powers  of 
the  earth,  the  separate  and  equal  station  to  which  the  Laws  of 
Nature  and  of  Nature's  God  entitle  them,  a  decent  respect  to 
the  opinions  of  mankind  requir'^s  that  they  should  declare  the 
causes  which  impel  them  to  the  separation. 

We  hold  these  truths  to  be  self-evident,  that  all  men  are 
created  equal,  that  they  are  endowed  by  their  Creator  with 
certain  unalienable  Rights,  that  among  these  are  Life,  Liberty 
and  the  pursuit  of  Happiness.  That  to  secure  these  rights, 
Governments  are  instituted  among  Men,  deriving  their  just 
powers  from  the  consent  of  the  governed.  That  whenever  any 
Form  of  Government  becomes  destructive  of  these  ends,  it  is 
the  Right  of  the  People  to  alter  or  to  abolish  it,  and  to  institute 
new  Government,  laying  its  foundation  on  such  principles  and 
organizing  its  powers  in  such  form,  as  to  them  shall  seem  most 
likely  to  effect  their  Safety  and  Happiness.  Prudence,  indeed, 
will  dictate  that  Governments  long  established  should  not  be 
changed  for  light  and  transient  causes;  and  accordingly  all 
experience  hath  shown,  that  mankind  are  more  disposed  to 
suffer,  while  evils  are  sufferable,  than  to  right  themselves  by 
abolishing  the  forms  to  which  they  are  accustomed.  But  when 
a  long  train  of  abuses  and  usurpations,  pursuing  invariably  the 
same  Object  e\dnces  a  design  to  reduce  them  under  absolute 
Despotism,  it  is  their  right,  it  is  their  duty,  to  throw  off  such 
Government,  and  to  provide  new  Guards  for  their  future 
security.  —  Such  has  been  the  patient  sufferance  of  these 
Colonies;  and  such  is  now  the  necessity  which  constrains  them 
to  alter  their  former  Systems  of  Government.  The  history  of 
the  present  King  of  Great  Britain  is  a  history  of  repeated  in- 
juries and  usurpations,  all  having  in  direct  object  the  estab- 
^  Revised  Statutes  of  the  United  States  (1878),  3-5. 


POLITICAL  DOCTRINES  OF  THE  ERA     47 

lishment  of  an  absolute  Tyranny  over  these  States.  To  prove 
this,  let  Facts  be  submitted  to  a  candid  world 

In  every  stage  of  these  Oppressions  We  have  Petitioned  for 
Redress  in  the  most  humble  terms:  Our  repeated  Petitions  have 
been  answered  only  by  repeated  injury,  A  Prince,  whose  char- 
acter is  thus  marked  by  every  act  which  may  define  a  Tyrant, 
is  unfit  to  be  the  ruler  of  a  free  People. 

Nor  have  We  been  wanting  in  attention  to  our  British 
brethren.  We  have  warned  them  from  time  to  time  of  attempts 
by  their  legislature  to  extend  an  unwarrantable  jurisdiction 
over  us.  We  have  reminded  them  of  the  circumstances  of  our 
emigration  and  settlement  here.  We  have  appealed  to  their 
native  justice  and  magnanimity,  and  we  have  conjured  them 
by  the  ties  of  our  common  kindred  to  disavow  these  usurpa- 
tions, which  would  inevitably  interrupt  our  connections  and 
correspondence.  They  too  have  been  deaf  to  the  voice  of  jus- 
tice and  of  consanguinity.  We  must,  therefore,  acquiesce  in  the 
necessity,  which  denounces  our  Separation,  and  hold  them,  as 
we  hold  the  rest  of  mankind,  Enemies  in  War,  in  Peace  Friends. 

We,  therefore,  the  Representatives  of  the  united  States  of 
America,  in  General  Congress,  Assembled,  appeahng  to  the 
Supreme  Judge  of  the  world  for  the  rectitude  of  our  intentions, 
do,  in  the  Name,  and  by  Authority  of  the  good  People  of  these 
Colonies,  solemnly  publish  and  declare.  That  these  United 
Colonies  are,  and  of  Right  ought  to  be  Free  and  Independent 
States;  that  they  are  Absolved  from  all  Allegiance  to  the  Brit- 
ish Crown,  and  that  all  political  connection  between  them  and 
the  State  of  Great  Britain,  is  and  ought  to  be  totally  dissolved; 
and  that  as  Free  and  Independent  States,  they  have  full  Power 
to  levy  War,  conclude  Peace,  contract  Alliances,  establish  Com- 
merce, and  to  do  all  other  Acts  and  Things  which  Independent 
States  may  of  right  do.  And  for  the  support  of  this  Declara- 
tion, with  a  firm  reliance  on  the  Protection  of  Divine  Provi- 
dence, we  mutually  pledge  to  each  other  our  Lives,  our  For- 
tunes and  our  sacred  Honor. 


48    FOUNDATIONS  OF  AMERICAN  POLITY 

17.  Massachusetts  Declaration  of  Rights  —  lySo} 

The  end  of  the  institution,  maintenance,  and  administration 
of  government,  is  to  secure  the  existence  of  the  body  poHtic,  to 
protect  it,  and  to  furnish  the  individuals  who  compose  it  with 
the  power  of  enjoying  in  safety  and  tranquillity  their  natural 
rights,  and  the  blessings  of  life:  and  whenever  these  great 
objects  are  not  obtained  the  people  have  a  right  to  alter  the 
government,  and  to  take  measures  necessary  for  their  safety, 
prosperity,  and  happiness. 

The  body  pohtic  is  formed  by  a  voluntary  association  of  indi- 
viduals: it  is  a  social  compact,  by  which  the  whole  people  cove- 
nants with  each  citizen,  and  each  citizen  with  the  whole  people, 
that  all  shall  be  governed  by  certain  laws  for  the  common  good. 
It  is  the  duty  of  the  people,  therefore,  in  framing  a  constitution 
of  government,  to  provide  for  an  equitable  mode  of  making 
laws,  as  well  as  for  an  impartial  interpretation  and  a  faithful 
execution  of  them;  that  every  man  may,  at  all  times,  find  his 
security  in  them. 

We,  therefore,  the  people  of  Massachusetts,  aclcnowledging, 
with  grateful  hearts,  the  goodness  of  the  great  Legislator  of 
the  universe,  in  affording  us,  in  the  course  of  His  providence, 
an  opportunity,  deliberately  and  peaceably,  without  fraud, 
violence,  or  surprise,  of  entering  into  an  original,  expHcit,  and 
solemn  compact  with  each  other ;  and  of  forming  a  new  consti- 
tution of  civil  government,  for  ourselves  and  posterity;  and 
devoutly  imploring  His  direction  in  so  interesting  a  design,  do 
agree  upon,  ordain,  and  establish,  the  following  Declaration  of 
Rights,  and  Frame  of  Government,  as  the  Constitution  of  the 
Commonwealth  of  Massachusetts. 

Article  I.  All  men  are  born  free  and  equal,  and  have  certain 
natural,  essential,  and  unalienable  rights;  among  which  may 
be  reckoned  the  right  of  enjoying  and  defending  their  lives  and 
liberties;  that  of  acquiring,  possessing,  and  protecting  property; 
in  fine,  that  of  seeking  and  obtaining  their  safety  and  happiness. 

II.  It  is  the  right  as  well  as  the  duty  of  all  men  in  society, 
^  Thorpe,  Federal  and  State  Constitutions,  iii,  1888-93. 


POLITICAL  DOCTRINES  OF  THE  ERA      49 

publicly,  and  at  stated  seasons,  to  worship  the  Supreme  Being, 
the  great  Creator  and  Preserver  of  the  universe.  And  no  sub- 
ject shall  be  hurt,  molested,  or  restrained,  in  his  person,  lib- 
erty, or  estate,  for  worshipping  God  in  the  manner  and  season 
most  agreeable  to  the  dictates  of  his  own  conscience ;  or  for  his 
religious  profession  of  sentiments;  provided  he  doth  not  dis- 
turb the  public  peace,  or  obstruct  others  in  their  religious 
worship. 

III.  As  the  happiness  of  a  people,  and  the  good  order  and 
preservation  of  civil  government,  essentially  depend  upon 
piety,  religion  and  morality;  and  as  these  cannot  be  generally 
diffused  through  a  community  but  by  the  institution  of  the 
public  worship  of  God,  and  of  public  instructions  in  piety, 
reUgion,  and  moraHty:  Therefore,  to  promote  their  happiness, 
and  to  secure  the  good  order  and  preservation  of  their  govern- 
ment, the  people  of  this  commonwealth  have  a  right  to  invest 
their  legislature  with  power  to  authorize  and  require,  and  the 
legislature  shall,  from  time  to  time,  authorize  and  require,  the 
several  towns,  parishes,  precincts,  and  other  bodies  poHtic,  or 
religious  societies,  to  make  suitable  provision,  at  their  own 
expense,  for  the  institution  of  the  pubUc  worship  of  God,  and 
for  the  support  and  maintenance  of  public  Protestant  teachers 
of  piety,  religion,  and  morahty,  in  all  cases  where  such  provis- 
ion shall  not  be  made  voluntarily. 

And  the  people  of  this  commonwealth  have  also  a  right  to, 
and  do,  invest  their  legislature  with  authority  to  enjoin  upon 
all  the  subjects  an  attendance  upon  the  instructions  of  the 
public  teachers  aforesaid,  at  stated  times  and  seasons,  if  there 
be  any  on  whose  instructions  they  can  conscientiously  and 
conveniently  attend. 

Provided,  notwithstanding,  that  the  several  towns,  parishes, 
precincts,  and  other  bodies  politic,  or  religious  societies,  shall, 
at  all  times,  have  the  exclusive  right  of  electing  their  public 
teachers,  and  of  contracting  with  them  for  their  support  and 
maintenance. 

And  all  moneys  paid  by  the  subject  to  the  support  of  pubhc 
worship,  and  of   the  public    teachers  aforesaid,  shall,  if   he 


50    FOUNDATIONS  OF  AMERICAN  POLITY 

require  it,  be  uniformly  applied  to  the  support  of  the  public 
teacher  or  teachers  of  his  own  religious  sect  or  denomination, 
provided  there  be  any  on  whose  instructions  he  attends;  other- 
wise it  may  be  paid  towards  the  support  of  the  teacher  or 
teachers  of  the  parish  or  precinct  in  which  the  said  moneys  are 

raised. 

And  every  denomination  of  Christians,  demeaning  them- 
selves peaceably,  and  as  good  subjects  of  the  commonwealth, 
shall  be  equally  under  the  protection  of  the  law:  and  no  sub- 
ordination of  any  one  sect  or  denomination  to  another  shall 
ever  be  established  by  law. 

IV.  The  people  of  this  commonwealth  have  the  sole  and 
exclusive  right  of  governing  themselves,  as  a  free,  sovereign, 
and  independent  state;  and  do,  and  forever  hereafter  shall, 
exercise  and  enjoy  every  power,  jurisdiction,  and  right,  which 
is  not,  or  may  not  hereafter  be,  by  them  expressly  delegated  to 
the  United  States  of  America,  in  Congress  assembled. 

V.  All  power  residing  originally  in  the  people,  and  being 
derived  from  them,  the  several  magistrates  and  officers  of 
government,  vested  with  authority,  whether  legislative,  execu- 
tive, or  judicial,  are  their  substitutes  and  agents,  and  are  at  all 
times  accountable  to  them. 

VI.  No  man,  nor  corporation,  or  association  of  men,  have 
any  other  title  to  obtain  advantages,  or  particular  and  exclu- 
sive pri\ileges,  distinct  from  those  of  the  community,  than 
what  arises  from  the  consideration  of  services  rendered  to  the 
public;  and  this  title  being  in  nature  neither  hereditary,  nor 
transmissible  to  children,  or  descendants,  or  relations  by  blood, 
the  idea  of  a  man  born  a  magistrate,  law-giver,  or  judge,  is 
absurd  and  unnatural. 

VII.  Government  is  instituted  for  the  common  good;  for 
the  protection,  safety,  prosperity,  and  happiness  of  the  people; 
and  not  for  the  profit,  honor,  or  private  interest  of  any  one  man, 
family,  or  class  of  men:  Therefore  the  people  alone  have  an  in- 
contestible  unalienable,  and  indefeasible  right  to  insritute  gov- 
ernment; and  to  reform,  alter,  or  totally  change  the  same,  when 
their  protection,  safety,  prosperity,  and  happiness  require  it. 


POLITICAL  DOCTRINES  OF  THE  ERA    51 

VIII.  In  order  to  prevent  those  who  are  vested  with  author- 
ity from  becoming  oppressors,  the  people  have  a  right,  at  such 
periods  and  in  such  manner  as  they  shall  establish  by  their 
frame  of  government,  to  cause  their  public  officers  to  return  to 
private  life;  and  to  fill  up  vacant  places  by  certain  and  regular 
elections  and  appointments. 

IX.  All  elections  ought  to  be  free;  and  all  the  inhabitants  of 
this  commonwealth,  having  such  qualifications  as  they  shall 
establish  by  their  frame  of  government,  have  an  equal  right 
to  elect  officers,  and  to  be  elected,  for  public  employments. 

X.  Each  individual  of  the  society  has  a  right  to  be  protected 
by  it  in  the  enjoyment  of  his  Hfe,  liberty,  and  property,  accord- 
ing to  standing  laws.  He  is  obliged,  consequently,  to  contrib- 
ute his  share  to  the  expense  of  this  protection;  to  give  his 
personal  service,  or  an  equivalent,  when  necessary:  but  no 
part  of  the  property  of  any  individual  can,  with  justice,  be 
taken  from  him,  or  applied  to  public  uses,  without  his  own 
consent,  or  that  of  the  representative  body  of  the  people.  In 
fine,  the  people  of  this  commonwealth,  are  not  controllable  by 
any  other  laws  than  those  to  which  their  constitutional  repre- 
sentative body  have  given  their  consent.  And  whenever  the 
public  exigencies  require  that  the  property  of  any  individual 
should  be  appropriated  to  public  uses,  he  shall  receive  a  reason- 
able compensation  therefor. 

XI.  Every  subject  of  the  commonwealth  ought  to  find  a 
certain  remedy,  by  having  recourse  to  the  laws  for  all  injuries 
or  wrongs  which  he  may  receive  in  his  person,  property,  or 
character.  He  ought  to  obtain  right  and  justice  freely,  and 
without  being  obliged  to  purchase  it;  completely,  and  without 
any  denial;  promptly,  and  without  delay;  conformably  to  the 
laws. 

XII.  No  subject  shall  be  held  to  answer  for  any  crimes  or 
offence,  until  the  same  is  fully  and  plainly,  substantially,  and 
formally,  described  to  him;  or  be  compelled  to  accuse,  or  fur- 
nish evidence  against  himself.  And  every  subject  shall  have  a 
right  to  produce  all  proofs  that  may  be  favorable  to  him;  to 
meet  the  witnesses  against  him  face  to  face,  and  to  be  fully 


52    FOUNDATIONS  OF  AMERICAN  POLITY 

heard  in  his  defence  by  himself,  or  his  counsel,  at  his  election. 
And  no  subject  shall  be  arrested,  imprisoned,  despoiled,  or 
deprived  of  his  property,  immunities,  or  privileges,  put  out  of 
the  protection  of  the  law,  exiled,  or  deprived  of  his  life,  liberty, 
or  estate,  but  by  the  judgment  of  his  peers,  or  the  law  of  the 
land. 

And  the  legislature  shall  not  make  any  law  that  shall  sub- 
ject any  person  to  a  capital  or  infamous  punishment,  excepting 
for  the  government  of  the  army  and  navy,  without  trial  by 

jury. 

XIII.  In  criminal  prosecutions,  the  verification  of  facts,  in 
the  vicinity  where  they  happen,  is  one  of  the  greatest  securities 
of  the  life,  Hberty,  and  property  of  the  citizen. 

XIV.  Every  subject  has  a  right  to  be  secure  from  all  unrea- 
sonable searches,  and  seizures,  of  his  person,  his  houses,  his 
papers,  and  all  his  possessions.  All  warrants,  therefore,  are 
contrary  to  this  right,  if  the  cause  or  foundation  of  them  be  not 
previously  supported  by  oath  or  affirmation,  and  if  the  order 
in  the  warrant  to  a  civil  officer,  to  make  search  in  suspected 
places,  or  to  arrest  one  or  more  suspected  persons,  or  to  seize 
their  property,  be  not  accompanied  with  a  special  designation 
of  the  persons  or  objects  of  search,  arrest,  or  seizure;  and  no 
warrant  ought  to  be  issued  but  in  cases,  and  with  the  formali- 
ties prescribed  by  the  laws. 

XV.  In  all  controversies  concerning  property,  and  in  all 
suits  between  two  or  more  persons,  except  in  cases  in  which  it 
has  heretofore  been  otherways  used  and  practised,  the  parties 
have  a  right  to  a  trial  by  jury;  and  this  method  of  procedure 
shall  be  held  sacred,  unless,  in  causes  arising  on  the  high  seas, 
and  such  as  relate  to  mariners'  wages,  the  legislature  shall  here- 
after find  it  necessary  to  alter  it. 

XVI.  The  liberty  of  the  press  is  essential  to  the  security 
of  freedom  in  a  state  it  ought  not,  therefore,  to  be  restricted  in 
this  commonwealth. 

XVII.  The  people  have  a  right  to  keep  and  to  bear  arms  for 
the  common  defence.  And  as,  in  time  of  peace,  armies  are 
dangerous  to  liberty,  they  ought  not  to  be  maintained  without 


POLITICAL  DOCTRINES  OF  THE  ERA    53 

the  consent  of  the  legislature;  and  the  military  power  shall 
always  be  held  in  an  exact  subordination  to  the  civil  authority, 
and  be  governed  by  it. 

XVIII.  A  frequent  recurrence  to  the  fundamental  principles 
of  the  constitution,  and  a  constant  adherence  to  those  of  piety, 
justice,  moderation,  temperance,  industry,  and  frugality,  are 
absolutely  necessary  to  preserve  the  advantages  of  liberty,  and 
to  maintain  a  free  government.  The  people  ought,  conse- 
quently, to  have  a  particular  attention  to  all  those  principles,^ 
in  the  choice  of  their  officers  and  representatives:  and  they 
have  a  right  to  require  of  their  lawgivers  and  magistrates  an 
exact  and  constant  observance  of  them,  in  the  formation  and 
execution  of  the  laws  necessary  for  the  good  administration  of 
the  commonwealth. 

XIX.  The  people  have  a  right,  in  an  orderly  and  peaceable 
manner,  to  assemble  to  consult  upon  the  common  good;  give 
instructions  to  their  representatives,  and  to  request  of  the 
legislative  body,  by  the  way  of  addresses,  petitions,  or  remon- 
strances, redress  of  the  wrongs  done  them,  and  of  the  griev- 
ances they  suffer. 

XX.  The  power  of  suspending  the  laws,  or  the  execution  of 
the  laws,  ought  never  to  be  exercised  but  by  the  legislature,  or 
by  authority  derived  from  it,  to  be  exercised  in  such  particular 
cases  only  as  the  legislature  shall  expressly  provide  for. 

XXI.  The  freedom  of  deliberation,  speech,  and  debate,  in 
either  house  of  the  legislature,  is  so  essential  to  the  rights  of  the 
people,  that  it  cannot  be  the  foundation  of  any  accusation  or 
prosecution,  action  or  complaint,  in  any  other  court  or  place 
whatsoever. 

XXII.  The  legislature  ought  frequently  to  assemble  for  the 
redress  of  grievances,  for  correcting,  strengthening,  and  con- 
firming the  laws,  and  for  making  new  laws,  as  the  common  good 
may  require. 

XXIII.  No  subsidy,  charge,  tax,  impost,  or  duties  ought  to 
be  established,  fixed,  laid,  or  levied,  under  any  pretext  whatso- 
ever, without  the  consent  of  the  people  or  their  representatives 
in  the  legislature. 


54    FOUNDATIONS  OF  AMERICAN  POLITY 

XXIV.  Laws  made  to  punish  for  actions  done  before  the 
existence  of  such  laws,  and  which  have  not  been  declared  crimes 
by  preceding  laws,  are  unjust,  oppressive,  and  inconsistent  with 
the  fundamental  principles  of  a  free  government. 

XXV.  No  subject  ought,  in  any  case,  or  in  any  time,  to  be 
declared  guilty  of  treason  or  felony  by  the  legislature. 

XXVI.  No  magistrate  or  court  of  law  shall  demand  exces- 
sive bail  or  sureties,  impose  excessive  fines,  or  inflict  cruel  or 
unusual  punishments. 

XXVII.  In  time  of  peace,  no  soldier  ought  to  be  quartered 
in  any  house  without  the  consent  of  the  owner;  and  in  time  of 
war,  such  quarters  ought  not  to  be  made  but  by  the  civil  mag- 
istrate, in  a  manner  ordained  by  the  legislature. 

XXVIII.  No  person  can  in  any  case  be  subject  to  law- 
martial,  or  to  any  penalties  or  pains,  by  virtue  of  that  law, 
except  those  employed  in  the  army  or  navy,  and  except  the 
militia  in  actual  service,  but  by  authority  of  the  legislature. 

XXIX.  It  is  essential  to  the  preservation  of  the  rights  of 
every  individual,  his  life,  liberty,  property,  and  character,  that 
there  be  an  impartial  interpretation  of  the  laws,  and  adminis- 
tration of  justice.  It  is  the  right  of  every  citizen  to  be  tried  by 
judges  as  free,  impartial,  and  independent  as  the  lot  of  human- 
ity will  admit.  It  is,  therefore,  not  only  the  best  policy,  but  for 
the  security  of  the  rights  of  the  people,  and  of  every  citizen, 
that  the  judges  of  the  supreme  judicial  court  should  hold  their 
offices  as  long  as  they  behave  themselves  well;  and  that  they 
should  have  honorable  salaries  ascertained  and  established  by 
standing  laws. 

XXX.  In  the  government  of  this  commonwealth,  the  legis- 
lative department  shall  never  exercise  the  executive  and  judi- 
cial powers,  or  either  of  them:  the  executive  shall  never  exercise 
the  legislative  and  judicial  powers,  or  either  of  them:  the  judi- 
cial shall  never  exercise  the  legislative  and  executive  powers, 
or  either  of  them:  to  the  end  it  may  be  a  government  of  laws 
and  not  of  men. 


PART  TWO.  THE  FORMATION  OF  STATE 
AND  FEDERAL  CONSTITUTIONS 

CHAPTER  VII 

PRINCIPLES    OF    REPRESENTATIVE    GOVERNMENT 

The  constructive  statesmen  of  the  revolutionary  era  were  not  believers 
in  pure  democracy.  In  every  colony  there  had  been  a  governing  class 
more  or  less  clearly  recognized.  And  even  after  the  Revolution  had 
brought  new  and  radical  leaders  to  the  fore,  the  common  assumption  was 
that  the  masses  would  still  be  governed  by  the  upper  classes.  Although 
the  following  selections  from  the  Federalist  refer  to  the  new  Federal 
Constitution,  they  contain  a  fair  statement  of  the  fundamental  principles 
upon  which  all  constitutions  of  this  great  constitution-making  age  were 
drafted. 

i8.  Distinction  between  Democracies  and  Republics} 

From  this  view  of  the  subject  it  may  be  conchided  that  a 
pure  democracy,  by  which  I  mean  a  society  consisting  of  a 
small  number  of  citizens,  who  assemble  and  administer  the 
government  in  person,  can  admit  of  no  cure  for  the  mischiefs  of 
faction.  A  common  passion  or  interest  will,  in  almost  every 
case,  be  felt  by  a  majority  of  the  whole;  a  communication  and 
concert  result  from  the  form  of  government  itself;  and  there 
is  nothing  to  check  the  inducements  to  sacrifice  the  weaker 
party  or  an  obnoxious  individual.  Hence  it  is  that  such  demo- 
cracies have  ever  been  spectacles  of  turbulence  and  contention; 
have  ever  been  found  incompatible  with  personal  security  or 
the  rights  of  property;  and  have  in  general  been  as  short  in 
their  lives  as  they  have  been  violent  in  their  deaths.  Theoretic 
politicians,  who  have  patronized  this  species  of  government, 
have  erroneously  supposed  that  by  reducing  mankind  to  a 
perfect  equality  in  their  political  rights,  they  would,  at  the 
same  time,  be  perfectly  equalized  and  assimilated  in  their 
possessions,  their  opinions,  and  their  passions. 
1  Federalist  (Ford  ed.),  No.  lo  passim. 


S6     THE  FORMATION  OF  CONSTITUTIONS 

A  republic,  by  which  I  mean  a  government  in  which  the 
scheme  of  representation  takes  place,  opens  a  different  prospect, 
and  promises  the  cure  for  which  we  are  seeking.  Let  us  exam- 
ine the  points  in  which  it  varies  from  pure  democracy,  and  we 
shall  comprehend  both  the  nature  of  the  cure  and  the  efficacy 
which  it  must  derive  from  the  Union. 

The  two  great  points  of  difference  between  a  democracy  and 
a  republic  are:  first,  the  delegation  of  the  government,  in  the 
latter,  to  a  small  number  of  citizens  elected  by  the  rest;  sec- 
ondly, the  greater  number  of  citizens,  and  greater  sphere  of 
country,  over  which  the  latter  may  be  extended. 

The  effect  of  the  first  difference  is,  on  the  one  hand,  to  refine 
and  enlarge  the  public  views,  by  passing  them  through  the 
medium  of  a  chosen  body  of  citizens,  whose  wisdom  may  best 
discern  the  true  interest  of  their  country,  and  whose  patriotism 
and  love  of  justice  will  be  least  likely  to  sacrifice  it  to  temporary 
or  partial  considerations.  .  .  . 

19.  The  Nature  of  Representation} 

The  idea  of  an  actual  representation  of  all  classes  of  the 
people  by  persons  of  each  class  is  altogether  visionary.  Unless 
it  were  expressly  provided  in  the  Constitution  that  each  differ- 
ent occupation  should  send  one  or  more  members,  the  thing 
would  never  take  place  in  practice.  Mechanics  and  manufac- 
turers will  always  be  incHned,  with  few  exceptions,  to  give  their 
votes  to  merchants  in  preference  to  persons  of  their  own  pro- 
fessions or  trades.  Those  discerning  citizens  are  well  aware 
that  the  mechanic  and  manufacturing  arts  furnish  the  materi- 
als of  mercantile  enterprise  and  industry.  Many  of  them,  in- 
deed, are  immediately  connected  with  the  operations  of  com- 
merce. They  know  that  the  merchant  is  their  natural  patron 
and  friend;  and  they  are  aware  that,  however  great  the  confi- 
dence they  may  justly  feel  in  their  own  good  sense,  their  inter- 
ests can  be  more  effectually  promoted  by  the  merchant  than 
by  themselves.  They  are  sensible  that  their  habits  in  life  have 
not  been  such  as  to  give  them  those  acquired  endowments 
^  Federalist  (Ford  ed.),  No.  35  and  No.  36  passim. 


I 


REPRESENTATIVE  GOVERNMENT       57 

without  which,  in  a  deliberative  assembly,  the  greatest  natural 
abilities  are  for  the  most  part  useless;  and  that  the  influence 
and  weight  and  superior  acquirements  of  the  merchants  render 
them  more  equal  to  a  contest  with  any  spirit  which  might 
happen  to  infuse  itself  into  the  public  councils,  unfriendly  to 
the  manufacturing  and  trading  interests.  These  considerations, 
and  many  others  that  might  be  mentioned,  prove,  and  experi- 
ence confirms  it,  that  artisans  and  manufacturers  will  com- 
monly be  disposed  to  bestow  their  votes  upon  merchants  and 
those  whom  they  recommend.  We  must  therefore  consider 
merchants  as  the  natural  representatives  of  all  these  classes  of 
the  community. 

With  regard  to  the  learned  professions  little  need  be  observed ; 
they  truly  form  no  distinct  interest  in  society,  and,  according 
to  their  situation  and  talents,  will  be  indiscriminately  the 
objects  of  the  confidence  and  choice  of  each  other,  and  of  other 
parts  of  the  community. 

Nothing  remains  but  the  landed  interest;  and  this,  in  a 
political  view,  and  particularly  in  relation  to  taxes,  I  take  to  be 
perfectly  united,  from  the  wealthiest  landlord  down  to  the 
poorest  tenant.  No  tax  can  be  laid  on  land  which  will  not 
affect  the  proprietor  of  millions  of  acres  as  well  as  the  pro- 
prietor of  a  single  acre.  Every  landholder  will  therefore  have 
a  common  interest  to  keep  the  taxes  on  land  as  low  as  possible ; 
and  common  interest  may  always  be  reckoned  upon  as  the 
surest  bond  of  sympathy.  But  if  we  even  could  suppose  a  dis- 
tinction of  interest  between  the  opulent  landholder  and  the 
middling  farmer,  what  reason  is  there  to  conclude  that  the  first 
would  stand  a  better  chance  of  being  deputed  to  the  national 
legislature  than  the  last?  If  we  take  fact  as  our  guide,  and  look 
into  our  own  Senate  and  Assembly,^  we  shall  find  that  moderate 
proprietors  of  land  prevail  in  both;  nor  is  this  less  the  case  in 
the  Senate,  which  consists  of  a  smaller  number,  than  in  the 
Assembly,  which  is  composed  of  a  greater  number.  Where  the 
qualifications  of  the  electors  are  the  same,  whether  they  have 
to  choose  a  small  or  a  large  number,  their  votes  will  fall  upon 
^  The  Senate  and  Assembly  of  New  York. 


58      THE  FORMATION  OF  CONSTITUTIONS 

those  in  whom  they  have  the  most  confidence,  whether  these 
happen  to  be  men  of  large  fortunes,  or  of  moderate  property, 
or  of  no  property  at  all. 

It  is  said  to  be  necessary  that  all  classes  of  citizens  should 
have  some  of  their  o^ti  number  in  the  representative  body  in 
order  that  their  feeUngs  and  interests  may  be  the  better  under- 
stood and  attended  to.  But  we  have  seen  that  this  will  never 
happen  under  any  arrangement  that  leaves  the  votes  of  the 
people  free.  Where  this  is  the  case,  the  representative  body, 
with  too  few  exceptions  to  ha\  e  any  influence  on  the  spirit  of 
the  government,  will  be  composed  of  landholders,  merchants, 
and  men  of  the  learned  professions.  ... 

We  have  seen  that  the  result  of  the  observations  to  which 
the  foregoing  number  has  been  principally  devoted  is  that 
from  the  natural  operation  of  the  different  interests  and  views 
of  the  various  classes  of  the  community,  whether  the  represen- 
tation of  the  people  be  more  or  less  numerous,  it  will  consist 
almost  entirely  of  proprietors  of  land,  of  merchants,  and  of 
members  of  the  learned  professions,  who  will  truly  represent 
all  those  different  interests  and  views.  If  it  should  be  objected 
that  we  have  seen  other  descriptions  of  men  in  the  local  legis- 
latures, I  answer  that  it  is  admitted  there  are  exceptions  to  the 
rule,  but  not  in  sufficient  number  to  influence  the  general  com- 
plexion or  character  of  the  government.  There  are  strong 
minds  in  every  walk  of  life  that  will  rise  superior  to  the  disad- 
vantages of  situation,  and  will  command  the  tribute  due  to 
their  merit,  not  only  from  the  classes  to  which  they  particu- 
larly belong,  but  from  the  society  in  general.  The  door  ought 
to  be  equally  open  to  all;  and  I  trust,  for  the  credit  of  human 
nature  that  we  shall  see  examples  of  such  vigorous  plants 
flourishing  in  the  soil  of  federal  as  well  as  of  State  legislation; 
but  occasional  instances  of  this  sort  will  not  render  the  reason- 
ing founded  upon  the  general  course  of  things  less  conclu- 


sive. 


REPRESENTATIVE  GOVERNMENT       59 

20.  The  Doctrine  of  the  Separation  oj  Powers.^ 

The  oracle  who  is  always  consulted  and  cited  on  this  subject 
is  the  celebrated  Montesquieu.  If  he  be  not  the  author  of  this 
invaluable  precept  in  the  science  of  politics,  he  has  the  merit 
at  least  of  displaying  and  recommending  it  most  effectually 
to  the  attention  of  mankind.  Let  us  endeavor,  in  the  first 
place,  to  ascertain  his  meaning  on  this  point.  .  .  . 

On  the  slightest  view  of  the  British  Constitution,  we  must 
perceive  that  the  legislative,  executive,  and  judiciary  depart- 
ments are  by  no  means  totally  separate  and  distinct  from  each 
other.  The  executive  magistrate  forms  an  integral  part  of 
the  legislative  authority.  He  alone  has  the  prerogative  of 
making  treaties  with  foreign  sovereigns,  which,  when  made, 
have,  under  certain  limitations,  the  force  of  legislative  acts. 
All  the  members  of  the  judiciary  department  are  appointed  by 
him,  can  be  removed  by  him  on  the  address  of  the  two  Houses 
of  Parliament,  and  form,  when  he  pleases  to  consult  them,  one 
of  his  constitutional  councils.  One  branch  of  the  legislative 
department  forms  also  a  great  constitutional  council  to  the 
executive  chief,  as,  on  another  hand,  it  is  the  sole  depositary 
of  judicial  power  in  cases  of  impeachment,  and  is  invested  with 
the  supreme  appellate  jurisdiction  in  all  other  cases.  The 
judges,  again,  are  so  far  connected  with  the  legislative  depart- 
ment as  often  to  attend  and  participate  in  its  deliberations, 
though  not  admitted  to  a  legislative  vote. 

From  these  facts,  by  which  Montesquieu  was  guided,  it  may 
clearly  be  inferred  that,  in  saying  "There  can  be  no  liberty 
where  the  legislative  and  executive  powers  are  united  in  the 
same  person,  or  body  of  magistrates,"  or,  "if  the  power  of 
judging  be  not  separated  from  the  legislative  and  executive 
powers,"  he  did  not  mean  that  these  departments  ought  to 
have  no  partial  agency  in,  or  no  control  over,  the  acts  of  each 
other.  His  meaning,  as  his  own  words  import,  and  still  more 
conclusively  as  illustrated  by  the  example  in  his  eye,  can 
amount  to  no  more  than  this,  that  where  the  whole  power  of 
^  Federalist  (Ford  ed.),  No.  47  passim. 


6o     THE  FORMATION  OF  CONSTITUTIONS 

one  department  is  exercised  by  the  same  hands  which  possess 
the  whole  power  of  another  department,  the  fundamental  prin- 
ciples of  a  free  constitution  are  subverted.  This  would  have 
been  the  case  in  the  constitution  examined  by  him,  if  the  king, 
who  is  the  sole  executive  magistrate,  had  possessed  also  the 
complete  legislative  power,  or  the  supreme  administration 
of  justice;  or  if  the  entire  legislative  body  had  possessed  the 
supreme  judiciary,  or  the  supreme  executive  authority.  This, 
however,  is  not  among  the  \aces  of  that  constitution.  The 
magistrate  in  whom  the  whole  executive  power  resides  cannot 
of  himself  make  a  law,  though  he  can  put  a  negative  on  every 
law;  nor  administer  justice  in  person,  though  he  has  the 
appointment  of  those  who  do  administer  it.  The  judges  can 
exercise  no  executive  prerogative,  though  they  are  shoots  from 
the  executive  stock;  nor  any  legislative  function,  though  they 
may  be  advised  with  by  the  legislative  councils.  The  entire 
legislature  can  perform  no  judiciary  act,  though  by  the  joint 
act  of  two  of  its  branches  the  judges  may  be  removed  from 
their  offices,  and  though  one  of  its  branches  is  possessed 
of  the  judicial  power  in  the  last  resort.  The  entire  legisla- 
ture, again,  can  exercise  no  executive  prerogative,  though 
one  of  its  branches  constitutes  the  supreme  executive  ma- 
gistracy, and  another,  on  the  impeachment  of  a  third,  can 
try  and  condemn  all  the  subordinate  officers  in  the  executive 
department. 

The  reasons  on  which  Montesquieu  grounds  his  maxim  are 
a  further  demonstration  of  his  meaning.  "  WTien  the  legislative 
aftd  executive  powers  are  united  in  the  same  person  or  body," 
says  he,  "there  can  be  no  Hberty,  because  apprehensions  may 
arise  lest  the  same  monarch  or  senate  should  enact  tyrannical 
laws  to  execute  them  in  a  tyrannical  manner."  Again:  "Were 
the  power  of  judging  joined  with  the  legislative,  the  life  and 
Uberty  of  the  subject  would  be  exposed  to  arbitrary  control, 
for  the  judge  would  then  be  the  legislator.  Were  it  joined  to  the 
executive  power,  the  judge  might  behave  with  all  the  violence 
of  an  oppressor.  "  Some  of  these  reasons  are  more  fully  explained 
in  other  passages;  but  briefly  stated  as  they  are  here,  they  suffi- 


REPRESENTATIVE  GOVERNMENT       6i 

ciently  establish  the  meaning  which  we  have  put  on  this  cele- 
brated maxim  of  this  celebrated  author. 

2 1 .  Checks  and  Balances.  ^ 

In  order  to  lay  a  due  foundation  for  that  separate  and  dis- 
tinct exercise  of  the  different  powers  of  government,  which  to 
a  certain  extent  is  admitted  on  all  hands  to  be  essential  to  the 
preservation  of  liberty,  it  is  evident  that  each  department 
should  have  a  will  of  its  own,  and  consequently  should  be  so 
constituted  that  the  members  of  each  should  have  as  little 
agency  as  possible  in  the  appointment  of  the  members  of  the 
others.  Were  this  principle  rigorously  adhered  to,  it  would 
require  that  all  the  appointments  for  the  supreme  executive, 
legislative,  and  judiciary  magistracies  should  be  drawn  from 
the  same  fountain  of  authority,  the  people,  through  channels 
having  no  communication  whatever  with  one  another.  Per- 
haps such  a  plan  of  constructing  the  several  departments  would 
be  less  difiEicult  in  practice  than  it  may  in  contemplation  appear. 
Some  difficulties,  however,  and  some  additional  expense  would 
attend  the  execution  of  it.  Some  deviations,  therefore,  from 
the  principle  must  be  admitted.  In  the  constitution  of  the 
judiciary  department  in  particular,  it  might  be  inexpedient  to 
insist  rigorously  on  the  principle :  first,  because  peculiar  quali- 
fications being  essential  in  the  members,  the  primary  considera- 
tions ought  to  be  to  select  that  mode  of  choice  which  best 
secures  these  qualifications;  secondly,  because  the  permanent 
tenure  by  which  the  appointments  are  held  in  that  department, 
must  soon  destroy  all  sense  of  dependence  on  the  authority 
conferring  them. 

It  is  equally  evident  that  the  members  of  each  department 
should  be  as  Httle  dependent  as  possible  on  those  of  the  others 
for  the  emoluments  annexed  to  their  offices.  Were  the  execu- 
tive magistrate,  or  the  judges,  not  independent  of  the  legisla- 
ture in  this  particular,  their  independence  in  every  other  would 
be  merely  nominal. 

But  the  great  security  against  a  gradual  concentration  of  the 
^  Federalist  (Ford  ed.),  No.  51. 


62      THE  FORMATION  OF  CONSTITUTIONS 

several  powers  in  the  same  department  consists  in  giving  to 
those  who  administer  each  department  the  necessary  constitu- 
tional means  and  personal  motives  to  resist  encroachments  of 
the  others.  The  provision  for  defense  must  in  this,  as  in  all 
other  cases,  be  made  commensurate  to  the  danger  of  attack. 
Ambition  must  be  made  to  counteract  ambition.  The  interest 
of  the  man  must  be  connected  with  the  constitutional  rights 
of  the  place.  It  may  be  a  reflection  on  human  nature  that  such 
devices  should  be  necessary  to  control  the  abuses  of  govern- 
ment. But  what  is  government  itself,  but  the  greatest  of  all 
reflections  on  human  nature?  If  men  were  angels,  no  govern- 
ment would  be  necessary.  If  angels  were  to  govern  men, 
neither  external  nor  internal  controls  on  government  would  be 
necessary.  In  framing  a  government  which  is  to  be  adminis- 
tered by  men  over  men,  the  great  difiiculty  lies  in  this:  you 
must  first  enable  the  government  to  control  the  governed ;  and 
in  the  next  place  oblige  it  to  control  itself.  A  dependence  on 
the  people  is,  no  doubt,  the  primary  control  on  the  government; 
but  experience  has  taught  mankind  the  necessity  of  auxiliary 
precautions. 

This  policy  of  supplying,  by  opposite  and  rival  interests,  the 
defect  of  better  motives,  might  be  traced  through  the  whole 
system  of  human  affairs,  private  as  well  as  public.  We  see  it 
particularly  displayed  in  all  the  subordinate  distributions  of 
power,  where  the  constant  aim  is  to  divide  and  arrange  the 
several  ofiices  in  such  a  manner  as  that  each  may  be  a  check  on 
the  other  —  that  the  private  interest  of  every  individual  may 
be  a  sentinel  over  the  public  rights.  These  inventions  of  pru- 
dence cannot  be  less  requisite  in  the  distribution  of  the  supreme 
powers  of  the  State. 


CHAPTER  VIII 

STATE  CONSTITUTIONS   OF  THE  REVOLUTIONARY  ERA 

The  outbreak  of  the  Revolution  was  marked  in  all  the  proprietary  and 
royal  provinces  by  the  elimination  of  the  governor.  Government  fell  into 
the  hands  of  the  assemblies,  or  of  irregular  congresses  and  conventions, 
acting  under  no  other  authority  than  that  derived  from  public  opinion. 
Nothing  attests  more  strongly  the  law-abiding  instinct  of  the  provincial 
leaders  than  their  insistent  efforts  to  replace  their  revolutionary  bodies 
by  regularly  constituted  governments.  On  May  15,  1776,  Congress 
"  recommended  to  the  respective  assemblies  and  conventions  of  the  United 
Colonies,  where  no  government  sufficient  to  the  exigencies  of  their  affairs 
has  been  hitherto  established,  to  adopt  such  government  as  shall,  in  the 
opinion  of  the  representatives  of  the  people,  best  conduce  to  the  happi- 
ness and  safety  of  their  constituents  in  particular,  and  America  in  general." 
Before  the  end  of  the  war,  eleven  of  the  colonies  had  framed  State 
Constitutions  and  established  orderly  governments.  Rhode  Island  and 
Connecticut  continued  to  live  under  their  charters,  which  with  minor 
changes  served  as  constitutions.  Importance  attaches  to  these  first  State 
Constitutions  not  only  because  they  exhibit  the  political  ideas  of  the  time, 
but  also  because  they  reveal  precedents  and  practices  upon  which  the 
framers  of  the  National  Constitution  drew  in  the  Convention  of  1787. 
While  these  constitutions  differ  in  detail,  they  have  much  in  common. 
In  their  provisions  for  the  organization  of  the  powers  of  government, 
the  Constitutions  of  New  Jersey  and  Virginia  may  be  accounted  typical. 
It  should  be  noted,  however,  that  in  five  States  the  governor  was  elected 
by  popular  vote,  and  that  Pennsylvania  and  Georgia  had  uni-cameral 
legislatures. 

22.  Transition  from  Colony  to  Commonwealth  in  Connecticut 

The  People  of  this  State,  being  by  the  Providence  of  God,  free 
and  independent,  have  the  sole  and  exclusive  Right  of  governing 
themselves  as  a  free,  sovereign,  and  independent  State;  and  having 
from  their  Ancestors  derived  a  free  and  excellent  Constitution  of 
Government  whereby  the  Legislature  depends  on  the  free  and 
annual  Election  of  the  People,  they  have  the  best  Security  for  the 
Preservation  of  their  civil  and  religious  Rights  and  Liberties.  And 
forasmuch  as  the  free  Fruition  of  such  Liberties  and  Privileges 
^  Poore,  Charters  and  Constitutions,  i,  257. 


64     THE  FORMATION  OF  CONSTITUTIONS 

as  Humanity,  Civility,  and  Christianity  call  for,  as  is  due  to  every 
Man  in  his  Place  and  Proportion,  without  Impeachment  and 
Infringement,  hath  ever  been,  and  will  be  the  Tranquility  and 
Stability  of  Churches  and  Commonwealths ;  and  the  Denial 
thereof,  the  Disturbance,  if  not  the  Ruin  of  both. 

Paragraph  i.  Be  it  enacted  and  declared  by  the  Governor,  and 
Council,  and  House  of  Representatives,  in  General  Court  assem- 
bled, That  the  ancient  Form  of  Civil  Government,  contained 
in  the  Charter  from  Charles  the  Second,  King  of  England,  and 
adopted  by  the  People  of  this  State,  shall  be  and  remain  the 
Civil  Constitution  of  this  State,  under  the  sole  authority  of  the 
People  thereof,  independent  of  any  King  or  Prince  whatever. 
And  that  this  Republic  is,  and  shall  forever  be  and  remain,  a 
free,  sovereign  and  independent  State,  by  the  Name  of  the 
STATE  of  CONNECTICUT.  .  .  . 

23.  Constitution  of  New  Jersey  —  iyy6.^ 

We,  the  representatives  of  the  colony  of  New  Jersey,  having 
been  elected  by  all  the  counties,  in  the  freest  manner,  and  in 
congress  assembled,  have,  after  mature  deliberations,  agreed 
upon  a  set  of  charter  rights  and  the  form  of  a  Constitution,  in 
manner  following,  viz. 

I.  That  the  government  of  this  Province  shall  be  vested  in  a 
Governor,  Legislative  Council,  and  General  Assembly. 

II.  That  the  Legislative  Council,  and  General  Assembly, 
shall  be  chosen,  for  the  first  time,  on  the  second  Tuesday  in 
August  next;  the  members  whereof  shall  be  the  same  in  number 
and  qualifications  as  are  herein  after  mentioned;  and  shall  be 
and  remain  vested  with  all  the  powers  and  authority  to  be 
held  by  any  future  Legislative  Council  and  Assembly  of  this 
Colony,  until  the  second  Tuesday  in  October,  which  shall  be 
in  the  year  of  our  Lord  one  thousand  seven  hundred  and 
seventy-seven. 

III.  That  on  the  second  Tuesday  in  October  yearly,  and 
every  year  forever  (with  the  privilege  of  adjourning  from  day 
to  day  as  occasion  may  require)  the  counties  shall  severally 

^  Thorpe,  Federal  and  State  Constitutions,  v,  2594-2598. 


STATE  CONSTITUTIONS  65 

choose  one  person,  to  be  a  member  of  the  Legislative  Council 
of  this  Colony,  who  shall  be,  and  have  been,  for  one  whole  year 
next  before  the  election,  an  inhabitant  and  freeholder  in  the 
county  in  which  he  is  chosen,  and  worth  at  least  one  thousand 
pounds  proclamation  money,  of  real  and  personal  estate, 
within  the  same  county;  that,  at  the  same  time,  each  county 
shall  also  choose  three  members  of  Assembly;  provided  that 
no  person  shall  be  entitled  to  a  seat  in  the  said  Assembly  unless 
he  be,  and  have  been,  for  one  whole  year  next  before  the  elec- 
tion, an  inhabitant  of  the  county  he  is  to  represent,  and  worth 
five  hundred  pounds  proclamation  money,  in  real  and  personal 
estate,  in  the  same  county:  that  on  the  second  Tuesday  next 
after  the  day  of  election,  the  Council  and  Assembly  shall  sepa- 
rately meet;  and  that  the  consent  of  both  Houses  shall  be 
necessary  to  every  law;  provided,  that  seven  shall  be  a  quorum 
of  the  Council,  for  doing  business,  and  that  no  law  shall  pass, 
unless  there  be  a  majority  of  all  the  Representatives  of  each 
body  personally  present,  and  agreeing  thereto.  Provided 
always,  that  if  a  majority  of  the  representatives  of  this  Pro- 
vince, in  Council  and  General  Assembly  convened,  shall,  at 
any  time  or  times  hereafter,  judge  it  equitable  and  proper,  to 
add  to  or  diminish  the  number  or  proportion  of  the  members 
of  Assembly  for  any  county  or  counties  in  this  Colony,  then, 
and  in  such  case,  the  same  may,  on  the  principles  of  more 
equal  representation,  be  lawfully  done;  anything  in  this 
Charter  to  the  contrary  notwithstanding:  so  that  the  whole 
number  of  Representatives  in  Assembly  shall  not,  at  any  time, 
be  less  than  thirty-nine. 

IV.  That  all  inhabitants  of  this  Colony,  of  full  age,  who  are 
worth  fifty  pounds  proclamation  money,  clear  estate  in  the 
same,  and  have  resided  within  the  county  in  which  they  claim 
a  vote  for  twelve  months  immediately  preceding  the  election, 
shall  be  entitled  to  vote  for  Representatives  in  Council  and 
Assembly;  and  also  for  all  other  public  officers,  that  shall  be 
elected  by  the  people  of  the  county  at  large. 

V.  That  the  Assembly,  when  met,  shall  have  power  to  choose 
a  Speaker,  and  other  their  ofi6cers;  to  be  judges  of  the  qualifi- 


66     THE  FORMATION  OF  CONSTITUTIONS 

cations  and  elections  of  their  own  members;  sit  upon  their  own 
adjournments;  prepare  bills,  to  be  passed  into  laws;  and  to 
empower  their  Speaker  to  convene  them,  whenever  any  extraor- 
dinary occurrence  shall  render  it  necessary. 

VI.  That  the  Council  shall  also  have  power  to  prepare  bills 
to  pass  into  laws,  and  have  other  like  powers  as  the  Assembly, 
and  in  all  respects  be  a  free  and  independent  branch  of  the 
Legislature  of  this  Colony;  save  only,  that  they  shall  not  pre- 
pare or  alter  any  money  bill  —  which  shall  be  the  privilege  of 
the  Assembly;  that  the  Council  shall,  from  time  to  time,  be 
convened  by  the  Governor  or  Vice-President,  but  must  be 
convened,  at  all  times,  when  the  Assembly  sits;  for  which  pur- 
pose the  Speaker  of  the  House  of  Assembly  shall  always,  imme- 
diately after  an  adjournment,  give  notice  to  the  Governor,  or 
Vice-President,  of  the  time  and  place  to  which  the  House  is 
adjourned. 

VII.  That  the  Council  and  Assembly  jointly,  at  their  first 
meeting  after  each  annual  election,  shall,  by  a  majority  of 
votes,  elect  some  fit  person  within  the  Colony,  to  be  Governor 
for  one  year,  who  shall  be  constant  President  of  the  Council, 
and  have  a  casting  vote  in  their  proceedings;  and  that  the  Coun- 
cil themselves  shall  choose  a  Vice-President  who  shall  act  as 
such  in  the  absence  of  the  Governor. 

VIII.  That  the  Governor,  or,  in  his  absence,  the  Vice- 
President  of  the  Council,  shall  have  the  supreme  executive 
power,  be  Chancellor  of  the  Colony,  and  act  as  captain-general 
and  commander  in  chief  of  all  the  militia,  and  other  military 
force  in  this  Colony;  and  that  any  three  or  more  of  the  Council 
shall,  at  all  times,  be  a  privy-council,  to  consult  them;  and  that 
the  Governor  be  ordinary  or  surrogate-general. 

IX.  That  the  Governor  and  Council,  (seven  whereof  shall 
be  a  quorum)  be  the  Court  of  Appeals,  in  the  last  resort,  in  all 
causes  of  law,  as  heretofore;  and  that  they  possess  the  power 
of  granting  pardons  to  criminals,  after  condemnation,  in  all 
cases  of  treason,  felony,  or  other  offences. 

^  X.  That  captains,  and  all  other  inferior  oflficers  of  the  mili- 
tia, shall  be  chosen  by  the   companies,  in   the    respective 


STATE  CONSTITUTIONS  (>^ 

counties;  but  field  and  general  officers,  by  the  Council  and 
Assembly. 

XI.  That  the  Council  and  Assembly  shall  have  power  to 
make  the  Great  Seal  of  this  Colony,  which  shall  be  kept  by  the 
Governor,  or,  in  his  absence,  by  the  Vice-President  of  the 
Council,  to  be  used  by  them  as  occasion  may  require:  and 
it  shall  be  called.  The  Great  Seal  of  the  Colony  of  New-Jersey. 

XII.  That  the  Judges  of  the  Supreme  Court  shall  continue 
in  office  for  seven  years :  the  Judges  of  the  Inferior  Court  of 
Common  Pleas  in  the  several  counties,  Justices  of  the  Peace, 
Clerks  of  the  Supreme  Court,  Clerks  of  the  Inferior  Court  of 
Common  Pleas  and  Quarter  Sessions,  the  Attorney-General, 
and  Provincial  Secretary,  shall  continue  in  office  for  five  years: 
and  the  Provincial  Treasurer  shall  continue  in  office  for  one 
year;  and  that  they  shall  be  severally  appointed  by  the  Council 
and  Assembly,  in  manner  aforesaid,  and  commissioned  by  the 
Governor,  or,  in  his  absence,  the  Vice-President  of  the  Council. 
Provided  always,  that  the  said  officers,  severally,  shall  be 
capable  of  being  re-appointed,  at  the  end  of  the  terms  severally 
before  limited;  and  that  any  of  the  said  officers  shall  be  liable 
to  be  dismissed,  when  adjudged  guilty  of  misbehaviour,  by  the 
Council,  on  an  impeachment  of  the  Assembly.   .  .  . 

XX.  That  the  legislative  department  of  this  government 
may,  as  much  as  possible,  be  preserved  from  all  suspicion  of 
corruption,  none  of  the  Judges  of  the  Supreme  or  other  Courts, 
Sheriffs,  or  any  other  person  or  persons  possessed  of  any  post  of 
profit  under  the  government,  other  than  Justices  of  the  Peace, 
shall  be  entitled  to  a  seat  in  the  Assembly:  but  that,  on  his 
being  elected,  and  taking  his  seat,  his  office  or  post  shall  be 
considered  as  vacant. 

XXI.  That  all  the  laws  of  this  Province,  contained  in  the 
edition  lately  published  by  Mr.  Allinson,  shall  be  and  remain 
in  full  force,  until  altered  by  the  Legislature  of  this  Colony 
(such  only  excepted,  as  are  incompatible  with  this  Charter) 
and  shall  be,  according  as  heretofore,  regarded  in  all  respects, 
by  all  civil  officers,  and  others,  the  good  people  of  this  Province. 

XXII.  That  the  common  law  of  England,  as  well  as  so  much 


68      THE  FORMATION  OF  CONSTITUTIONS 

of  the  statute  law,  as  have  been  heretofore  practised  in  this 
Colony,  shall  stiU  remain  in  force,  until  they  shall  be  altered 
by  a  future  law  of  the  Legislature;  such  parts  only  excepted, 
as  are  repugnant  to  the  rights  and  privileges  contained  in  this 
Charter;  and  that  the  inestimable  right  of  trial  by  jury  shall 
remain  confirmed  as  a  part  of  the  law  of  this  Colony  without 
repeal,  forever.  ... 

Provided  always,  and  it  is  the  true  intent  and  meaning  of 
this  Congress,  that  if  a  reconcihation  between  Great-Britain 
and  these  Colonies  should  take  place,  and  the  latter  be  taken 
again  under  the  protection  and  government  of  the  crown  of 
Britain,  this  Charter  shall  be  null  and  void  —  otherwise  to 
remain  firm  and  inviolable. 

24.  Constitution  of  Virginia  —  ///d.^ 

We  therefore,  the  delegates  and  representatives  of  the  good 
people  of  Virginia,  having  maturely  considered  the  premises, 
and  viewing  with  great  concern  the  deplorable  conditions  to 
which  this  once  happy  country  must  be  reduced,  unless  some 
regular,  adequate  mode  of  civil  polity  is  speedily  adopted ,  and 
in  compliance  with  a  recommendation  of  the  General  Congress, 
do  ordain  and  declare  the  future  form  of  government  of  Virginia 
to  be  as  followeth: 

The  legislative,  executive,  and  judiciary  department,  shall 
be  separate  and  distinct,  so  that  neither  exercise  the  powers 
properly  belonging  to  the  other :  nor  shall  any  person  exercise 
the  powers  of  more  than  one  of  them,  at  the  same  time;  except 
that  the  Justices  of  the  County  Courts  shall  be  eligible  to  either 
House  of  Assembly. 

The  legislative  shall  be  formed  of  two  distinct  branches,  who, 
together,  shall  be  a  complete  Legislature.  They  shall  meet 
once,  or  oftener,  every  year,  and  shall  be  called.  The  General 
Assembly  of  Virginia.  One  of  these  shall  be  called,  The  House 
of  Delegates,  and  consist  of  two  Representatives,  to  be  chosen 
for  each  county,  and  for  the  district  of  West- Augusta,  annually, 

^  Thorpe,  Federal  and  State  Constitutions,  va,  3815-19. 


STATE  CONSTITUTIONS  69 

of  such  men  as  actually  reside  in,  and  are  freeholders  of  the 
same,  or  duly  quahiied  according  to  law,  and  also  of  the  Dele- 
gate or  Representative,  to  be  chosen  annually  for  the  city  of 
WilUamsburgh,  and  one  for  the  borough  of  Norfolk,  and  a 
Representative  for  each  of  such  other  cities  and  boroughs,  as 
may  hereafter  be  allowed  particular  representation  by  the 
legislature ;  but  when  any  city  or  borough  shall  so  decrease,  as 
that  the  number  of  persons,  having  right  of  suffrage  therein, 
shall  have  been,  for  the  space  of  seven  years  successively,  less 
than  half  the  number  of  voters  in  some  one  county  in  Virginia, 
such  city  or  borough  thenceforward  shall  cease  to  send  a  Dele- 
gate or  Representative  to  the  Assembly. 

The  other  shall  be  called  The  Senate,  and  consist  of  twenty- 
four  members,  of  whom  thirteen  shall  constitute  a  House  to 
proceed  on  business;  for  whose  election,  the  different  counties 
shall  be  divided  into  twenty-four  districts ;  and  each  county  of 
the  respective  district,  at  the  time  of  the  election  of  its  Dele- 
gates, shall  vote  for  one  Senator,  who  is  actually  a  resident  and 
freeholder  within  the  district,  or  duly  qualified  according  to 
law,  and  is  upwards  of  twenty-five  years  of  age ;  and  the  Sher- 
iffs of  each  county,  within  five  days  at  farthest,  after  the  last 
county  election  in  the  district,  shall  meet  at  some  convenient 
place,  and  from  the  poll,  so  taken  in  their  respective  counties, 
return,  as  a  Senator,  the  man  who  shall  have  the  greatest 
number  of  votes  in  the  whole  district.  To  keep  up  this  Assem- 
bly by  rotation,  the  districts  shall  be  equally  divided  into  four 
classes  and  numbered  by  lot.  At  the  end  of  one  year  after  the 
general  election,  the  six  members,  elected  by  the  first  division, 
shall  be  displaced,  and  the  vacancies  thereby  occasioned  sup- 
pHed  from  such  class  or  division,  by  new  election,  in  the  manner 
aforesaid.  This  rotation  shall  be  appUed  to  each  division, 
according  to  its  number,  and  continued  in  due  order  annually. 

The  right  of  suffrage  in  the  election  of  members  for  both 
Houses  shall  remain  as  exercised  at  present;  and  each  House 
shall  choose  its  own  Speaker,  appoint  its  own  officers,  settle  its 
own  rules  of  proceeding,  and  direct  writs  of  election,  for  the 
supplying  intermediate  vacancies. 


70     THE  FORMATION  OF  CONSTITUTIONS 

All  laws  shall  originate  in  the  House  of  Delegates,  to  be  ap- 
proved of  or  rejected  by  the  Senate,  or  to  be  amended,  with 
consent  of  the  House  of  Delegates;  except  money-bills,  which 
in  no  instance  shall  be  altered  by  the  Senate,  but  wholly  ap- 
proved or  rejected. 

A  Governor,  or  chief  magistrate,  shall  be  chosen  annually 
by  joint  ballot  of  both  Houses  (to  be  taken  in  each  House 
respectively)  deposited  in  the  conference  room;  the  boxes 
examined  jointly  by  a  committee  of  each  House,  and  the  num- 
bers severally  reported  to  them,  that  the  appointments  may 
be  entered  (which  shall  be  the  mode  of  taking  the  joint  ballot 
of  both  Houses,  in  all  cases),  who  shall  not  continue  in  that 
office,  longer  than  three  years  successively,  nor  be  Eligible, 
until  the  expiration  of  four  years  after  he  shall  have  been  out 
of  that  office.  An  adequate,  but  moderate  salary  shall  be  settled 
on  him,  during  his  continuance  in  office;  and  he  shall,  with  the 
advice  of  a  Council  of  State,  exercise  the  executive  powers  of 
government,  according  to  the  laws  of  this  Commonwealth; 
and  shall  not,  under  any  pretence,  exercise  any  power  or  pre- 
rogative, by  virtue  of  any  law,  statute  or  custom  of  England. 
But  he  shall,  with  the  advice  of  the  Council  of  State,  have  the 
power  of  granting  reprieves  or  pardons,  except  where  the 
prosecution  shall  have  been  carried  on  by  the  House  of  Dele- 
gates, or  the  law  shall  otherwise  particularly  direct;  in  which 
cases,  no  reprieve  or  pardon  shall  be  granted,  but  by  resolve  of 
the  House  of  Delegates. 

Either  House  of  the  General  Assembly  may  adjourn  them- 
selves respectively.  The  Governor  shall  not  prorogue  or  ad- 
journ the  Assembly,  during  their  sitting,  nor  dissolve  them  at 
any  time;  but  he  shall,  if  necessary,  either  by  advice  of  the 
Council  of  State,  or  on  application  of  a  majority  of  the  House 
of  Delegates,  call  them  before  the  time  to  which  they  shall 
stand  prorogued  or  adjourned. 

A  Pri\y  Council,  or  Council  of  State,  consisting  of  eight 
members,  shall  be  chosen,  by  joint  ballot  of  both  Houses  of 
Assembly,  either  from  their  own  members  or  the  people  at 
large,  to  assist  in  the  administration  of  government.    They 


STATE  CONSTITUTIONS  71 

shall  annually  choose,  out  of  their  own  members,  a  President, 
who,  in  case  of  death,  inability,  or  absence  of  the  Governor 
from  the  government,  shall  act  as  Lieutenant-Governor.  Four 
members  shall  be  sufl&cient  to  act,  and  their  advice  and  pro- 
ceedings shall  be  entered  on  record,  and  signed  by  the  mem- 
bers present,  (to  any  part  whereof,  any  member  may  enter  his 
dissent)  to  be  laid  before  the  General  Assembly,  when  called 
for  by  them.  This  Council  may  appoint  their  own  Clerk,  who 
shall  have  a  salary  settled  by  law,  and  take  an  oath  of  secrecy, 
in  such  matters  as  he  shall  be  directed  by  the  board  to  conceal. 
A  sum  of  money,  appropriated  to  that  purpose,  shall  be  divided 
annually  among  the  members,  in  proportion  to  their  attend- 
ance; and  they  shall  be  incapable,  during  their  continuance  in 
office,  of  sitting  in  either  House  of  Assembly.  Two  members 
shall  be  removed,  by  joint  ballot  of  both  Houses  of  Assembly, 
at  the  end  of  every  three  years,  and  be  ineligible  for  the  three 
next  years.  These  vacancies,  as  well  as  those  occasioned  by 
death  or  incapacity,  shall  be  supplied  by  new  elections,  in  the 
same  manner. 

The  Delegates  for  Virginia  to  the  Continental  Congress 
shall  be  chosen  annually,  or  superseded  in  the  mean  time,  by 
joint  ballot  of  both  Houses  of  Assembly. 

The  present  militia  officers  shall  be  continued,  and  vacan- 
cies supplied  by  appointment  of  the  Governor,  with  the  advice 
of  the  Privy-Council,  on  recommendations  from  the  respective 
County  Courts;  but  the  Governor  and  Council  shall  have  a 
power  of  suspending  any  officer,  and  ordering  a  Court  Martial, 
on  complaint  of  misbehaviour  or  inability,  or  to  supply  vacan- 
cies of  officers,  happening  when  in  actual  service. 

The  Governor  may  embody  the  militia,  with  the  advice  of 
the  Privy  Council;  and  when  embodied,  shall  alone  have  the 
direction  of  the  mihtia,  under  the  laws  of  the  country. 

The  two  Houses  of  Assembly  shall,  by  joint  ballot,  appoint 
Judges  of  the  Supreme  Court  of  Appeals,  and  General  Court, 
Judges  in  Chancery,  Judges  of  Admiralty,  Secretary,  and  the 
Attorney-General,  to  be  commissioned  by  the  Governor,  and 
continue  in  office  during  good  behaviour.  In  case  of  death,  in- 


73      THE  FORMATION  OF  CONSTITUTIONS 

capacity,  or  resignation,  the  Governor,  with  the  advice  of  the 
Privy  Council,  shall  appoint  persons  to  succeed  in  office,  to  be 
approved  or  displaced  by  both  Houses.  These  officers  shall 
have  fixed  and  adequate  salaries,  and,  together  with  all  others, 
holding  lucrative  offices,  and  all  ministers  of  the  gospel,  of 
every  denomination,  be  incapable  of  being  elected  members 
of  either  House  of  Assembly  or  the  Privy  Council. 

The  Governor,  with  the  advice  of  the  Privy  Council,  shall 
appoint  Justices  of  the  Peace  for  the  counties;  and  in  case  of 
vacancies,  or  a  necessity  of  increasing  the  number  hereafter, 
such  appointments  to  be  made  upon  the  recommendation  of 
the  respective  County  Courts.  The  present  acting  Secretary  in 
Virginia,  and  Clerks  of  all  the  County  Courts,  shall  continue  in 
office.  In  case  of  vacancies,  either  by  death,  incapacity,  or 
resignation,  a  Secretary  shall  be  appointed,  as  before  directed; 
and  the  Clerks,  by  the  respective  Courts.  The  present  and 
future  Clerks  shall  hold  their  offices  during  good  behaviour, 
to  be  judged  of,  and  determined  in  the  General  Court.  The 
Sheriffs,  and  Coroners  shall  be  nominated  by  the  respective 
Courts,  approved  by  the  Governor,  with  the  advice  of  the 
Privy  Council,  and  commissioned  by  the  Governor.  The  Jus- 
tices shall  appoint  Constables;  and  all  fees  of  the  aforesaid 
officers  be  regulated  by  law. 

The  Governor,  when  he  is  out  of  office,  and  others,  offending 
against  the  State,  either  by  mal-administration,  corruption,  or 
other  means,  by  which  the  safety  of  the  State  may  be  endan- 
gered, shall  be  impeachable  by  the  House  of  Delegates.  Such 
impeachment  to  be  prosecuted  by  the  Attorney-General,  or 
such  other  person  or  persons,  as  the  House  may  appoint  in  the 
General  Court,  according  to  the  laws  of  the  land.  If  found 
guilty,  he  or  they  shall  be  either  forever  disabled  to  hold  any 
office  under  government,  or  be  removed  from  such  office  pro 
tempore,  or  subjected  to  such  pains  or  penalties  as  the  laws  shall 
direct. 

If  all  or  any  of  the  Judges  of  the  General  Court  should  on 
good  grounds  (to  be  judged  of  by  the  House  of  Delegates)  be 
accused  of  any  of  the  crimes  or  offences  above  mentioned,  such 


STATE  CONSTITUTIONS  73 

House  of  Delegates,  may,  in  like  manner,  impeach  the  Judge 
or  Judges  so  accused,  to  be  prosecuted  in  the  Court  of  Appeals; 
and  he  or  they,  if  found  guilty,  shall  be  punished  in  the  same 
manner  as  is  prescribed  in  the  preceding  clause. 

Commissions  and  grants  shall  run,  *'7w  the  name  of  the  Com- 
monwealth of  Virginia"  and  bear  test  by  the  Governor,  with 
the  seal  of  the  Commonwealth  annexed.  Writs  shall  run  in 
the  same  manner,  and  bear  test  by  the  Clerks  of  the  several 
Courts.  Indictments  shall  conclude,  ^'Against  the  peace  and 
dignity  of  the  Commonwealth." 

A  Treasurer  shall  be  appointed  annually,  by  joint  ballot  of 
both  Houses.  .  .  . 


CHAPTER  IX 

THE   FIRST  FEDERAL    CONSTITUTION 

The  Articles  of  Confederation  may  be  studied  from  two  points  of  view. 
On  the  one  hand,  they  may  be  viewed  as  the  first  and  necessarily  imper- 
fect, attempt  of  the  colonies  to  form  a  confederation.  When  the  absence 
of  inter-colonial  unity  previous  to  the  issues  brought  to  the  front  by  the 
Stamp  Act  is  kept  in  mind,  this  "league  of  friendship"  appears  as  a 
notable  move  in  the  direction  of  perpetual  union.  On  the  other  hand, 
American  society  had  political  wants  which  this  confederation  failed  to 
satisfy.  By  the  year  1781,  when  the  last  of  the  States  ratified  the  Articles, 
the  inadequacy  of  the  new  federal  government  was  already  apparent  to 
everyone. 

25.  The  Articles  of  Confederation} 

Articles  of  Confederation  and  perpetual  Union  between  the 
States  of  Newhamshire,  Massachusetts-bay,  Rhodeisland  and 
Providence  Plantations,  Connecticut,  New-York,  New- Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North-Carolina, 
South-Carolina  and  Georgia. 

Article  I.  The  stile  of  this  confederacy  shall  be  "The 
United  States  of  America." 

Article  II.  Each  State  retains  its  sovereignty,  freedom  and 
independence,  and  every  power,  jurisdiction  and  right,  which 
is  not  by  this  confederation  expressly  delegated  to  the  United 
States,  in  Congress  assembled. 

Article  III.  The  said  States  hereby  severally  enter  i'lto  a 
firm  league  of  friendship  with  each  other,  for  their  common 
defence,  the  security  of  their  liberties,  and  their  mutual  and 
general  welfare,  binding  themselves  to  assist  each  other,  against 
all  force  offered  to,  or  attacks  made  upon  them,  or  any  of  them, 
on  account  of  religion,  sovereignty,  trade,  or  any  other  pre- 
tence whatever. 

Article  IV.  The  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  different 
^  Revised  Statutes  of  the  United  States  (1878),  7-11. 


THE  FIRST  FEDERAL  CONSTITUTION     75 

States  in  this  Union,  the  free  inhabitants  of  each  of  these 
States,  paupers,  vagabonds  and  fugitives  from  justice  excepted, 
shall  be  entitled  to  all  privileges  and  immunities  of  free  citizens 
in  the  several  States;  and  the  people  of  each  State  shall  have 
free  ingress  and  regress  to  and  from  any  other  State,  and  shall 
enjoy  therein  all  the  privileges  of  trade  and  commerce,  subject 
to  the  same  duties,  impositions  and  restrictions  as  the  inhabit- 
ants thereof  respectively,  provided  that  such  restrictions  shall 
not  extend  so  far  as  to  prevent  the  removal  of  property  im- 
ported into  any  State,  to  any  other  state  of  which  the  owner  is 
an  inhabitant;  provided  also  that  no  imposition,  duties  or 
restriction  shall  be  laid  by  any  State,  on  the  property  of  the 
United  States,  or  either  of  them. 

If  any  Person  guilty  of,  or  charged  with  treason,  felony,  or 
other  high  misdemeanor  in  any  State,  shall  flee  from  justice, 
and  be  found  in  any  of  the  United  States,  he  shall  upon  demand 
of  the  Governor  or  Executive  power,  of  the  State  from  which  he 
fled,  be  delivered  up  and  removed  to  the  State  having  jurisdic- 
tion of  his  offence. 

Full  faith  and  credit  shall  be  given  in  each  of  these  States  to 
the  records,  acts  and  judicial  proceedings  of  the  courts  and 
magistrates  of  every  other  State. 

Article  V.  For  the  more  convenient  management  of  the 
general  interest  of  the  United  States,  delegates  shall  be  annu- 
ally appointed  in  such  manner  as  the  legislature  of  each  State 
shall  direct,  to  meet  in  Congress  on  the  first  Monday  in  No- 
vember, in  every  year,  with  a  power  reserved  to  each  State,  to 
recall  its  delegates,  or  any  of  them,  at  any  time  within  the  year, 
and  to  send  others  in  their  stead,  for  the  remainder  of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than  two, 
nor  by  more  than  seven  members ;  and  no  person  shall  be  cap- 
able of  being  a  delegate  for  more  than  three  years  in  any  term 
of  six  years;  nor  shall  any  person,  being  a  delegate,  be  capable 
of  holding  any  office  under  the  United  States,  for  which  he,  or 
another  for  his  benefit  receives  any  salary,  fees  or  emolument 
of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  a  meeting  of 


76    THE  FORMATION  OF  CONSTITUTIONS 

the  States,  and  while  they  act  as  members  of  the  committee  of 

the  States. 

In  determining  questions  in  the  United  States,  in  Congress 
assembled,  each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be 
impeached  or  questioned  in  any  court,  or  place  out  of  Congress, 
and  the  members  of  Congress  shall  be  protected  in  their  per- 
sons from  arrests  and  imprisonments,  during  the  time  of  their 
going  to  and  from,  and  attendance  on  Congress,  except  for 
treason,  felony,  or  breach  of  the  peace. 

Article  VI.  No  State  without  the  consent  of  the  United 
States  in  Congress  assembled,  shall  send  any  embassy  to,  or 
receive  any  embassy  from,  or  enter  into  any  conference,  agree- 
ment, alliance  or  treaty  with  any  king,  prince  or  state;  nor  shall 
any  person  holding  any  office  of  profit  or  trust  under  the  United 
States,  or  any  of  them,  accept  of  any  present,  emolument, 
office  or  title  of  any  kind  whatever  from  any  king,  prince  or 
foreign  state;  nor  shall  the  United  States  in  Congress  assembled, 
or  any  of  them,  grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confed- 
eration or  alliance  whatever  between  them,  without  the  con- 
sent of  the  United  States  in  Congress  assembled,  specifying 
accurately  the  purposes  for  which  the  same  is  to  be  entered 
into,  and  how  long  it  shall  continue. 

No  State  shall  lay  any  imposts  or  duties,  which  may  interfere 
with  any  stipulations  in  treaties,  entered  into  by  the  United 
States  in  Congress  assembled,  with  any  king,  prince  or  state,  in 
pursuance  of  any  treaties  already  proposed  by  Congress,  to  the 
courts  of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any 
State,  except  such  number  only,  as  shall  be  deemed  necessary 
by  the  United  States  in  Congress  assembled,  for  the  defence  of 
such  State,  or  its  trade;  nor  shall  any  body  of  forces  be  kept  up 
by  any  State,  in  time  of  peace,  except  such  number  only,  as  in 
the  judgment  of  the  United  States,  in  Congress  assembled, 
shall  be  deemed  requisite  to  garrison  the  forts  necessary  for  the 
defence  of  such  State;  but  every  State  shall  always  keep  up  a 


THE  FIRST  FEDERAL  CONSTITUTION    77 

well  regulated  and  disciplined  militia,  sufficiently  armed  and 
accoutered,  and  shall  provide  and  constantly  have  ready  for 
use,  in  public  stores,  a  due  number  of  field  pieces  and  tents,  and 
a  proper  quantity  of  arms,  ammunition  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the 
United  States  in  Congress  assembled,  unless  such  State  be 
actually  invaded  by  enemies,  or  shall  have  received  certain 
advice  of  a  resolution  being  formed  by  some  nation  of  Indians 
to  invade  such  State,  and  the  danger  is  so  imminent  as  not  to 
admit  of  a  delay,  till  the  United  States  in  Congress  assembled 
can  be  consulted :  nor  shall  any  State  grant  commissions  to  any 
ships  or  vessels  of  war,  nor  letters  of  marque  or  reprisal,  except 
it  be  after  a  declaration  of  war  by  the  United  States  in  Congress 
assembled,  and  then  only  against  the  kingdom  or  state  and  the 
subjects  thereof,  against  which  war  has  been  so  declared,  and 
under  such  regulations  as  shall  be  established  by  the  United 
States  in  Congress  assembled,  unless  such  State  be  infested 
by  pirates,  in  which  case  vessels  of  war  may  be  fitted  out  for 
that  occasion,  and  kept  so  long  as  the  danger  shall  continue, 
or  until  the  United  States  in  Congress  assembled  shall  deter- 
mine otherwise. 

Article  VII.  When  land-forces  are  raised  by  any  State  for 
the  common  defence,  all  officers  of  or  under  the  rank  of  colonel, 
shall  be  appointed  by  the  Legislature  of  each  State  respectively 
by  whom  such  forces  shall  be  raised,  or  in  such  manner  as  such 
State  shall  direct,  and  all  vacancies  shall  be  filled  up  by  the 
State  which  first  made  the  appointment. 

Article  VIII.  All  charges  of  war,  and  all  other  expenses 
that  shall  be  incurred  for  the  common  defence  or  general  wel- 
fare, and  allowed  by  the  United  States  in  Congress  assembled, 
shall  be  defrayed  out  of  a  common  treasury,  which  shall  be 
supplied  by  the  several  States,  in  proportion  to  the  value  of 
all  land  within  each  State,  granted  to  or  surveyed  for  any  per- 
son, as  such  land  and  the  buildings  and  improvements  thereon 
shall  be  estimated  according  to  such  mode  as  the  United  States 
in  Congress  assembled,  shall  from  time  to  time  direct  and 
appoint. 


78    THE  FORAIATION  OF  CONSTITUTIONS 

The  taxes  for  paying  that  proportion  shall  be  laid  and  levied 
by  the  authority  and  direction  of  the  Legislatures  of  the  several 
States  within  the  time  agreed  upon  by  the  United  States  in 
Congress  assembled. 

Article  IX.  The  United  States  in  Congress  assembled,  shall 
have  the  sole  and  exclusive  right  and  power  of  determining  on 
peace  and  war,  except  in  the  cases  mentioned  in  the  sixth 
article  — of  sending  and  receiving  ambassadors  —  entering 
into  treaties  and  alliances,  provided  that  no  treaty  of  commerce  / 
shall  be  made  whereby  the  legislative  power  of  the  respective 
States  shall  be  restrained  from  imposing  such  imposts  and 
duties  on  foreigners,  as  their  own  people  are  subjected  to,  or 
from  prohibiting  the  exportation  or  importation  of  any  species 
of  goods  or  commodities  whatsoever  —  of  establishing  rules 
for  deciding  in  all  cases,  what  captures  on  land  or  water  shall 
be  legal,  and  in  what  manner  prizes  taken  by  land  or  naval 
forces  in  the  service  of  the  United  States  shall  be  divided  or 
appropriated  —  of  granting  letters  of  marque  and  reprisal  in 
times  of  peace  —  appointing  courts  for  the  trial  of  piracies  and 
felonies  committed  on  the  high  seas  and  estabHshing  courts  for 
receiving  and  determining  finally  appeals  in  all  cases  of  cap- 
tures, provided  that  no  member  of  Congress  shall  be  ap- 
pointed a  judge  of  any  of  the  said  courts. 

The  United  States  in  Congress  assembled  shall  also  be  the 
last  resort  on  appeal  in  all  disputes  and  differences  now  sub- 
sisting or  that  hereafter  may  arise  between  two  or  more  States 
concerning  boundary,  jurisdiction  or  any  other  cause  whatever ; 
which  authority  shall  always  be  exercised  in  the  manner  fol- 
lowing. Whenever  the  legislative  or  executive  authority  or 
lawful  agent  of  any  State  in  controversy  with  another  shall 
present  a  petition  to  Congress,  stating  the  matter  in  question 
and  praying  for  a  hearing,  notice  thereof  shall  be  given  by 
order  of  Congress  to  the  legislative  or  executive  authority  of 
the  other  State  in  controversy,  and  a  day  assigned  for  the 
appearance  of  the  parties  by  their  lawful  agents,  who  shall  then 
be  directed  to  appoint  by  joint  consent,  commissioners  or 
judges  to  constitute  a  court  for  hearing  and  determining  the 


THE  FIRST  FEDERAL  CONSTITUTION    79 

matter  in  question:  but  if  they  cannot  agree,  Congress  shall 
name  three  persons  out  of  each  of  the  United  States,  and  from 
the  list  of  such  persons  each  party  shall  alternately  strike  out 
one,  the  petitioners  beginning,  until  the  number  shall  be  re- 
duced to  thirteen;  and  from  that  number  not  less  than  seven, 
nor  more  than  nine  names  as  Congress  shall  direct,  shall  in  the 
presence  of  Congress  be  drawn  out  by  lot,  and  the  persons 
whose  names  shall  be  so  drawn  or  any  five  of  them,  shall  be 
commissioners  or  judges,  to  hear  and  finally  determine  the  con- 
troversy, so  always  as  a  major  part  of  the  judges  who  shall  hear 
the  cause  shall  agree  in  the  determination :  and  if  either  party 
shall  neglect  to  attend  at  the  day  appointed,  without  showing 
reasons,  which  Congress  shall  judge  sufficient,  or  being  present 
shall  refuse  to  strike,  the  Congress  shall  proceed  to  nominate 
three  persons  out  of  each  State,  and  the  Secretary  of  Congress 
shall  strike  in  behalf  of  such  party  absent  or  refusing;  and  the 
judgment  and  sentence  of  the  court  to  be  appointed,  in  the 
manner  before  prescribed,  shall  be  final  and  conclusive;  and  if 
any  of  the  parties  shall  refuse  to  submit  to  the  authority  of 
such  court,  or  to  appear  or  defend  their  claim  or  cause,  the 
court  shall  nevertheless  proceed  to  pronounce  sentence,  or 
judgment,  which  shall  in  like  manner  be  final  and  decisive, 
the  judgment  or  sentence  and  other  proceedings  being  in  either 
case  transmitted  to  Congress,  and  lodged  among  the  acts  of 
Congress  for  the  security  of  the  parties  concerned:  provided 
that  every  commissioner,  before  he  sits  in  judgment,  shall  take 
an  oath  to  be  administered  by  one  of  the  judges  of  the  supreme 
or  superior  court  of  the  State,  where  the  cause  shall  be  tried, 
"well  and  truly  to  hear  and  determine  the  matter  in  question, 
according  to  the  best  of  his  judgment,  without  favour,  affec- 
tion or  hope  of  reward:"  provided  also  that  no  State  shall  be 
deprived  of  territory  for  the  benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed 
under  different  grants  of  two  or  more  States,  whose  jurisdiction 
as  they  may  respect  such  lands,  and  the  States  which  passed 
such  grants  are  adjusted,  the  said  grants  or  either  of  them  being 
at  the  same  time  claimed  to  have  originated  antecedent  to  such 


8o    THE  FORMATION  OF  CONSTITUTIONS 

settlement  of  jurisdiction,  shall  on  the  petition  of  either  party 
to  the  Congress  of  the  United  States,  be  finally  determined  as 
near  as  may  be  in  the  same  manner  as  is  before  prescribed  for 
deciding  disputes  respecting  territorial  jurisdiction  between 
different  States. 

The  United  States  in  Congress  assembled  shall  also  have  the 
sole  and  exclusive  right  and  power  of  regulating  the  alloy  and 
value  of  coin  struck  by  their  own  authority,  or  by  that  of  the 
respective  States—  fixing  the  standard  of  weights  and  measures 
throughout  the  United  States  —  regulating  the  trade  and  man- 
aging all  affairs  with  the  Indians,  not  members  of  any  of  the 
States,  provided  that  the  legislative  right  of  any  State  within 
its  own  limits  be  not  infringed  or  violated  —  establishing  and 
regulating  post-offices  from  one  State  to  another,  throughout 
all  the  United  States,  and  exacting  such  postage  on  the  papers 
passing  thro'  the  same  as  may  be  requisite  to  defray  the  ex- 
penses of  the  said  office  —  appointing  all  officers  of  the  land 
forces,  in  the  service  of  the  United  States,  excepting  regimental 
ofl&cers  —  appointing  all  the  officers  of  the  naval  forces,  and 
commissioning  all  officers  whatever  in  the  service  of  the  United 
States  —  making  rules  for  the  government  and  regulation  of 
the  said  land  and  naval  forces,  and  directing  their  operations. 

The  United  States  in  Congress  assembled  shall  have  author- 
ity to  appoint  a  committee,  to  sit  in  the  recess  of  Congress,  to 
be  denominated  "a  Committee  of  the  States,"  and  to  consist 
of  one  delegate  from  each  State;  and  to  appoint  such  other 
committees  and  civil  officers  as  may  be  necessary  for  manageing 
the  general  affairs  of  the  United  States  under  their  direction  — 
to  appoint  one  of  their  number  to  preside,  provided  that  no 
person  be  allowed  to  serve  in  the  ofi&ce  of  president  more  than 
one  year  in  any  term  of  three  years ;  to  ascertain  the  necessary 
sums  of  money  to  be  raised  for  the  service  of  the  United  States, 
and  to  appropriate  and  apply  the  same  for  defraying  the  public 
expenses  —  to  borrow  money,  or  emit  bills  on  the  credit  of  the 
United  States,  transmitting  every  half  year  to  the  respective 
States  an  account  of  the  sums  of  money  so  borrowed  or  emitted, 
—  to  build  and  equip  a  navy  —  to  agree  upon  the  number  of 


THE  FIRST  FEDERAL  CONSTITUTION    8i 

land  forces,  and  to  make  requisitions  from  each  State  for  its 
quota,  in  proportion  to  the  number  of  white  inhabitants  in  such 
State;  which  requisition  shall  be  binding,  and  thereupon  the 
Legislature  of  each  State  shall  appoint  the  regimental  officers, 
raise  the  men  and  cloath,  arm  and  equip  them  in  a  soldier  like 
manner,  at  the  expense  of  the  United  States;  and  the  ofiScers 
and  men  so  cloathed,  armed  and  equipped  shall  march  to  the 
place  appointed,  and  within  the  time  agreed  on  by  the  United 
States  in  Congress  assembled :  but  if  the  United  States  in  Con- 
gress assembled  shall,  on  consideration  of  circumstances  judge 
proper  that  any  State  should  not  raise  men,  or  should  raise  a 
smaller  number  than  its  quota,  and  that  any  other  State  should 
raise  a  greater  number  of  men  than  the  quota  thereof,  such 
extra  number  shall  be  raised,  officered,  cloathed,  armed  and 
equipped  in  the  same  manner  as  the  quota  of  such  State,  unless 
the  legislature  of  such  State  shall  judge  that  such  extra  num- 
ber cannot  be  safely  spared  out  of  the  same,  in  which  case 
they  shall  raise  officer,  cloath,  arm  and  equip  as  many  of  such 
extra  number  as  they  judge  can  be  safely  spared.  And  the 
officers  and  men  so  cloathed,  armed  and  equipped,  shall  march 
to  the  place  appointed,  and  within  the  time  agreed  on  by  the 
United  States  in  Congress  assembled. 

The  United  States  in  Congress  assembled  shall  never  engage 
in  a  war,  nor  grant  letters  of  marque  and  reprisal  in  time  of 
peace,  nor  enter  into  any  treaties  or  alliances,  nor  coin  money, 
nor  regulate  the  value  thereof,  nor  ascertain  the  sums  and  ex- 
penses necessary  for  the  defence  and  welfare  of  the  United 
States,  or  any  of  them,  nor  emit  bills,  nor  borrow  money  on  the 
credit  of  the  United  States,  nor  appropriate  money,  nor  agree 
upon  the  number  of  vessels  of  war,  to  be  built  or  purchased,  or 
the  number  of  land  or  sea  forces  to  be  raised,  nor  appoint  a 
commander  in  chief  of  the  army  or  navy,  unless  nine  States 
assent  to  the  same:  nor  shall  a  question  on  any  other  point, 
except  for  adjourning  from  day  to  day  be  determined,  unless 
by  the  votes  of  a  majority  of  the  United  States  in  Congress 
assembled. 

The  Congress  of  the  United  States  shall  have  power  to 


82    THE  FORMATION  OF  CONSTITUTIONS 

adjourn  to  any  time  within  the  year,  and  to  any  place  within 
the  United  States,  so  that  no  period  of  adjournment  be  for  a 
longer  duration  than  the  space  of  six  months,  and  shall  publish 
the  journal  of  their  proceedings  monthly,  except  such  parts 
thereof  relating  to  treaties,  alliances  or  military  operations,  as 
in  their  judgment  require  secresy;  and  the  yeas  and  nays  of  the 
delegates  of  each  State  on  any  question  shall  be  entered  on  the 
journal,  when  it  is  desired  by  any  delegate;  and  the  delegates 
of  a  State,  or  any  of  them,  at  his  or  their  request  shall  be 
furnished  with  a  transcript  of  the  said  journal,  except  such 
parts  as  are  above  excepted,  to  lay  before  the  Legislatures  of 
the  several  States. 

Article  X.  The  committee  of  the  States,  or  any  nine  of 
them,  shall  be  authorized  to  execute,  in  the  recess  of  Congress, 
such  of  the  powers  of  Congress  as  the  United  States  in  Congress 
assembled,  by  the  consent  of  nine  States,  shall  from  time  to 
time  think  expedient  to  vest  them  with ;  provided  that  no  power 
be  delegated  to  the  said  committee,  for  the  exercise  of  which, 
by  the  articles  of  confederation,  the  voice  of  nine  States  in  the 
Congress  of  the  United  States  assembled  is  requisite. 

Article  XI.  Canada  acceding  to  this  confederation,  and 
joining  in  the  measures  of  the  United  States,  shall  be  admitted 
into,  and  entitled  to  all  the  advantages  of  this  Union:  but  no 
other  colony  shall  be  admitted  into  the  same,  unless  such  ad- 
mission be  agreed  to  by  nine  States. 

Article  XII.  All  bills  of  credit  emitted,  monies  borrowed 
and  debts  contracted  by,  or  under  the  authority  of  Congress, 
before  the  assembling  of  the  United  States,  in  pursuance  of  the 
present  confederation,  shall  be  deemed  and  considered  as  a 
charge  against  the  United  States,  for  payment  and  satisfaction 
whereof  the  said  United  States,  and  the  public  faith  are  hereby 
solemnly  pledged. 

Article  XIII.  Every  State  shall  abide  by  the  determina- 
tions of  the  United  States  in  Congress  assembled,  on  all  ques- 
tions which  by  this  confederation  are  submitted  to  them.  And 
the  articles  of  this  confederation  shall  be  inviolably  observed 
by  every  State,  and  the  Union  shall  be  perpetual;  nor  shall  any 


THE  FIRST  FEDERAL  CONSTITUTION    83 

alteration  at  any  time  hereafter  be  made  in  any  of  them ;  unless 
such  alteration  be  agreed  to  in  a  Congress  of  the  United  States, 
and  be  afterwards  confirmed  by  the  Legislatures  of  every  State. 

And  whereas  it  hath  pleased  the  Great  Governor  of  the  World 
to  incline  the  hearts  of  the  Legislatures  we  respectively  repre- 
sent in  Congress,  to  approve  of,  and  to  authorize  us  to  ratify 
the  said  articles  of  confederation  and  perpetual  union.  Know 
ye  that  we  the  undersigned  delegates,  by  virtue  of  the  power 
and  authority  to  us  given  for  that  purpose,  do  by  these  presents, 
in  the  name  and  in  behalf  of  our  respective  constituents,  fully 
and  entirely  ratify  and  confirm  each  and  every  of  the  said  arti- 
cles of  confederation  and  perpetual  union,  and  all  and  singular 
the  matters  and  things  therein  contained:  and  we  do  further 
solemnly  plight  and  engage  the  faith  of  our  respective  constitu- 
ents, that  they  shall  abide  by  the  determinations  of  the  United 
States  in  Congress  assembled,  on  all  questions,  which  by  the 
said  confederation  are  submitted  to  them.  And  that  the  articles 
thereof  shall  be  inviolably  observed  by  the  States  we  respect- 
ively represent,  and  that  the  Union  shall  be  perpetual. 

In  witness  whereof  we  have  hereunto  set  our  hands  in  Con- 
gress. Done  at  Philadelphia  in  the  State  of  Pennsylvania  the 
ninth  day  of  July  in  the  year  of  our  Lord  one  thousand  seven 
hundred  and  seventy-eight,  and  in  the  third  year  of  the  inde- 
pendence of  America. 


CHAPTER  X 

DEFECTS    OF  THE   CONFEDERATION 

No  one  saw  and  described  more  clearly  the  real  nature  of  government 
under  the  Articles  of  Confederation  than  Alexander  Hamilton.  In  collab- 
oration with  Madison  and  Jay,  he  published  in  various  journals,  under 
the  pen-name  of  "Publius,"  a  series  of  letters  addressed  to  the  people  of 
the  State  of  New  York  in  advocacy  of  the  new  Constitution.  In  the 
division  of  labor  among  these  three,  Hamilton  undertook  to  examine  the 
defects  of  the  confederation  and  to  expound  the  details  of  the  projected 
government.  For  both  tasks  he  was  admirably  fitted,  for  to  remarkable 
powers  of  exposition  he  joined  extraordinary  keenness  of  observation  and 
criticism.  Numbers  15  and  21  of  the  Federalist,  as  these  letters  were  com- 
monly called,  appeared  in  the  Independent  Journal  on  December  i  and 
12,  1787. 

26.  Dependence  of  the  Confederation  on  the  State  Governments} 

.  .  .  The  great  and  radical  vice  in  the  construction  of  the 
existing  Confederation  is  in  the  principle  of  LEGISLATION 
for  STATES  or  GOVERNMENTS,  in  their  CORPORATE  or 
COLLECTIVE  CAPACITIES,  and  as  contradistinguished 
from  the  INDIVIDUALS  of  which  they  consist.  Though  this 
principle  does  not  run  through  all  the  powers  delegated  to  the 
Union,  yet  it  pervades  and  governs  those  on  which  the  efficacy 
of  the  rest  depends.  Except  as  to  the  rule  of  apportionment, 
the  United  States  have  an  indefinite  discretion  to  make  requi- 
sitions for  men  and  money;  but  they  have  no  authority  to 
raise  either,  by  regulations  extending  to  the  individual  citizens 
of  America.  The  consequence  of  this  is,  that,  though  in  theory 
their  resolutions  concerning  those  objects  are  laws,  constitu- 
tionally binding  on  the  members  of  the  Union,  yet  in  practice 
they  are  mere  recommendations,  which  the  States  observe  or 
disregard  at  their  option. 

It  is  a  singular  instance  of  the  capriciousness  of  the  human 
mind,  that  after  all  the  admonitions  we  have  had  from  experi- 

^  Federalist  (Ford  ed.),  No.  15,  90-95. 


DEFECTS  OF  THE  CONFEDERATION  85 

ence  on  this  head,  there  should  still  be  found  men,  who  object 
to  the  New  Constitution,  for  deviating  from  a  principle  which 
has  been  found  the  bane  of  the  old;  and  which  is,  in  itself, 
evidently  incompatible  with  the  idea  of  government;  a 
principle,  in  short,  which,  if  it  is  to  be  executed  at  all,  must 
substitute  the  violent  and  sanguinary  agency  of  the  sword  to 
the  mild  influence  of  the  Magistracy. 

There  is  nothing  absurd  or  impracticable  in  the  idea  of 
a  league  or  alliance  between  independent  nations,  for  certain 
defined  purposes  precisely  stated  in  a  treaty ;  regulating  all  the 
details  of  time,  place,  circumstance,  and  quantity;  leaving 
nothing  to  future  discretion;  and  depending  for  its  execution 
on  the  good  faith  of  the  parties.  Compacts  of  this  kind  exist 
among  all  civilized  nations,  subject  to  the  usual  vicissitudes  of 
peace  and  war,  of  observance  and  non-observance,  as  the  inter- 
ests or  passions  of  the  contracting  powers  dictate.  In  the  early 
part  of  the  present  century,  there  was  an  epidemical  rage  in 
Europe  for  this  species  of  compacts;  from  which  the  politi- 
cians of  the  times  fondly  hoped  for  benefits  which  were  never 
reahzed.  With  a  view  to  establishing  the  equilibrium  of  power 
and  the  peace  of  that  part  of  the  world,  all  the  resources  of 
negotiation  were  exhausted,  and  triple  and  quadruple  alliances 
were  formed;  but  they  were  scarcely  formed  before  they  were 
broken,  giving  an  instructive  but  afflicting  lesson  to  mankind, 
how  little  dependence  is  to  be  placed  on  treaties  which  have  no 
other  sanction  than  the  obligations  of  good  faith;  and  which 
oppose  general  considerations  of  peace  and  justice  to  the  im- 
pulse of  any  immediate  interest  or  passion. 

If  the  particular  States  in  this  country  are  disposed  to  stand 
in  a  similar  relation  to  each  other,  and  to  drop  the  project  of  a 
general  discretionary  superintendence,  the  scheme  would  indeed 
be  pernicious,  and  would  entail  upon  us  all  the  mischiefs  which 
have  been  enumerated  under  the  first  head ;  but  it  would  have 
the  merit  of  being,  at  least,  consistent  and  practicable.  Aban- 
doning all  views  towards  a  Confederate  Government,  this 
would  bring  us  to  a  simple  alliance  offensive  and  defensive;  and 
would  place  us  in  a  situation  to  be  alternately  friends  and  en- 


86     THE  F0RA4ATI0N  OF  CONSTITUTIONS 

emies  of  each  other,  as  our  mutual  jealousies  and  rivalships, 
nourished  by  the  intrigues  of  foreign  nations,  should  prescribe 
to  us. 

But  if  we  are  unwilling  to  be  placed  in  this  perilous  situation; 
if  we  still  will  adhere  to  the  design  of  a  National  Government, 
or,  which  is  the  same  thing,  of  a  superintending  power,  under 
the  direction  of  a  common  council,  we  must  resolve  to  incor- 
porate into  our  plan  those  ingredients  which  may  be  considered 
as  forming  the  characteristic  difference  between  a  league  and  a 
Government;  we  must  extend  the  authority  of  the  Union  to  the 
persons  of  the  citizens,  —  the  only  proper  objects  of  Govern- 
ment. 

Government  implies  the  power  of  making  laws.  It  is  essen- 
tial to  the  idea  of  a  law,  that  it  be  attended  with  a  sanction; 
or,  in  other  words,  a  penalty  or  punishment  for  disobedience. 
If  there  be  no  penalty  annexed  to  disobedience,  the  resolutions 
or  commands  which  pretend  to  be  laws  will,  in  fact,  amount 
to  nothing  more  than  advice  or  recommendation.  This  penalty, 
whatever  it  may  be,  can  only  be  inflicted  in  two  ways:  by  the 
agency  of  the  Courts  and  Ministers  of  Justice,  or  by  military 
force;  by  the  coercion  of  the  magistracy,  or  by  the  coercion 
of  arms.  The  first  kind  can  evidently  apply  only  to  men :  the 
last  kind  must,  of  necessity,  be  employed  against  bodies  politic, 
or  communities,  or  States.  It  is  evident,  that  there  is  no  pro- 
cess of  a  Court  by  which  the  observance  of  the  laws  can,  in  the 
last  resort,  be  enforced.  Sentences  may  be  denounced  against 
them  for  violations  of  their  duty;  but  these  sentences  can  only 
be  carried  into  execution  by  the  sword.  In  an  association  where 
the  general  authority  is  confined  to  the  collective  bodies  of  the 
communities  that  compose  it,  every  breach  of  the  laws  must 
involve  a  state  of  war;  and  military  execution  must  become  the 
only  instrument  of  civil  obedience.  Such  a  state  of  things  can 
certainly  not  deserve  the  name  of  Government,  nor  would  any 
prudent  man  choose  to  commit  his  happiness  to  it. 

There  was  a  time  when  we  were  told  that  breaches,  by  the 
States,  of  the  regulations  of  the  Federal  authority  were  not  to 
be  expected;  that  a  sense  of  common  interest  would  preside 


DEFECTS  OF  THE  CONFEDERATION    87 

over  the  conduct  of  the  respective  members,  and  would  beget 
a  full  compliance  with  all  the  constitutional  requisitions  of  the 
Union.  This  language,  at  the  present  day,  would  appear  as 
wild  as  a  great  part  of  what  we  now  hear  from  the  same  quarter 
will  be  thought,  when  we  shall  have  received  further  lessons 
from  that  best  oracle  of  wisdom,  experience.  It  at  all  times 
betrayed  an  ignorance  of  the  true  springs  by  which  human 
conduct  is  actuated,  and  belied  the  original  inducements  to  the 
establishment  of  civil  power.  Why  has  Government  been  in- 
stituted at  all?  Because  the  passions  of  men  will  not  conform 
to  the  dictates  of  reason  and  justice,  without  constraint.  Has 
it  been  found  that  bodies  of  men  act  with  more  rectitude  or 
greater  disinterestedness  than  individuals?  The  contrary  of 
this  has  been  inferred  by  all  accurate  observers  of  the  conduct 
of  mankind;  and  the  inference  is  founded  upon  obvious  reasons. 
Regard  to  reputation  has  a  less  active  influence,  when  the  in- 
famy of  a  bad  action  is  to  be  divided  among  a  number,  than 
when  it  is  to  fall  singly  upon  one.  A  spirit  of  faction,  which 
is  apt  to  mingle  its  poison  in  the  deliberations  of  all  bodies  of 
men,  will  often  hurry  the  persons  of  whom  they  are  composed 
into  improprieties  and  excesses,  for  which  they  would  blush 
in  a  private  capacity. 

In  addition  to  all  this,  there  is,  in  the  nature  of  sovereign 
power,  an  impatience  of  control,  that  disposes  those  who  are 
invested  with  the  exercise  of  it,  to  look  with  an  evil  eye  upon  all 
external  attempts  to  restrain  or  direct  its  operations.  From 
this  spirit  it  happens,  that  in  every  political  association  which 
is  formed  upon  the  principle  of  uniting  in  a  common  interest  a 
number  of  lesser  sovereignties,  there  will  be  found  a  kind  of 
eccentric  tendency  in  the  subordinate  or  inferior  orbs,  by  the 
operation  of  which  there  will  be  a  perpetual  effort  in  each  to  fly 
off  from  the  common  centre.  This  tendency  is  not  difficult  to 
be  accounted  for.  It  has  its  origin  in  the  love  of  power.  Power 
controlled  or  abridged  is  almost  always  the  rival  and  enemy 
of  that  power  by  which  it  is  controlled  or  abridged.  This  simple 
proposition  will  teach  us,  how  little  reason  there  is  to  expect, 
that  the  persons  intrusted  with  the  administration  of  the  affairs 


88      THE  FORAl^TION  OF  CONSTITUTIONS 

of  the  particular  members  of  a  Confederacy  will  at  all  times 
be  ready,  with  perfect  good-humor,  and  an  unbiased  regard  to 
the  pubHc  weal,  to  execute  the  resolutions  or  decrees  of  the 
general  authority.  The  reverse  of  this  results  from  the  consti- 
tution of  human  nature. 

If  therefore  the  measures  of  the  Confederacy  cannot  be 
executed,  without  the  intervention  of  the  particular  adminis- 
trations, there  will  be  little  prospect  of  their  being  executed  at 
all.  The  rulers  of  the  respective  members,  whether  they  have  a 
constitutional  right  to  do  it  or  not,  will  undertake  to  judge  of 
the  propriety  of  the  measures  themselves.  They  will  consider 
the  conformity  of  the  thing  proposed  or  required  to  their  im- 
mediate interests  or  aims;  the  momentary  conveniences  or 
inconveniences  that  would  attend  its  adoption.  All  this  will  be 
done;  and  in  a  spirit  of  interested  and  suspicious  scrutiny, 
without  that  knowledge  of  National  circumstances  and  reasons 
of  State,  which  is  essential  to  a  right  judgment,  and  with  that 
strong  predilection  in  favor  of  local  objects,  which  can  hardly 
fail  to  mislead  the  decision.  The  same  process  must  be  repeated 
in  every  member  of  which  the  body  is  constituted;  and  the 
execution  of  the  plans,  framed  by  the  councils  of  the  whole, 
will  always  fluctuate  on  the  discretion  of  the  ill-informed  and 
prejudiced  opinion  of  every  part.  Those  who  have  been  con- 
versant in  the  proceedings  of  popular  assemblies;  who  have 
seen  how  difficult  it  often  is,  when  there  is  no  exterior  pressure 
of  circumstances,  to  bring  them  to  harmonious  resolutions  on 
important  points,  will  readily  conceive  how  impossible  it  must 
be  to  induce  a  number  of  such  assemblies,  deliberating  at  a 
distance  from  each  other,  at  different  times,  and  under  different 
impressions,  long  to  cooperate  in  the  same  views  and  pursuits. 

27.  Specific  Dejects  of  the  Confederation} 

.  .  .  The  next  most  palpable  defect  of  the  subsisting  Con- 
federation is  the  total  want  of  a  samtion  to  its  laws.  The  United 
States,  as  now  composed,  have  no  powers  to  exact  obedience, 

/_  .  ^  Federalist  (Ford  ed.),  No.  21,  124-129. 


DEFECTS  OF  THE  CONFEDERATION    89 

or  punish  disobedience  to  their  resolutions,  either  by  pecuniary 
mulcts,  by  a  suspension  or  divesture  of  privileges,  or  by  any 
other  constitutional  mode.  There  is  no  express  delegation  of 
authority  to  them  to  use  force  against  dehnquent  members; 
and  if  such  a  right  should  be  ascribed  to  the  Federal  head,  as 
resulting  from  the  nature  of  the  social  compact  between  the 
States,  it  must  be  by  inference  and  construction,  in  the  face 
of  that  part  of  the  second  Article,  by  which  it  is  declared, 
''that  each  State  shall  retain  every  power,  jurisdiction,  and 
right,  not  expressly  delegated  to  the  United  States  in  Congress 
assembled."  There  is,  doubtless,  a  striking  absurdity  in  sup- 
posing that  a  right  of  this  kind  does  not  exist,  but  we  are 
reduced  to  the  dilemma  either  of  embracing  that  supposition, 
preposterous  as  it  may  seem,  or  of  contravening  or  explaining 
away  a  provision,  which  has  been  of  late  a  repeated  theme  of 
the  eulogies  of  those  who  oppose  the  new  Constitution;  and 
the  want  of  which,  in  that  plan,  has  been  the  subject  of  much 
plausible  animadversion,  and  severe  criticism.  If  we  are  un- 
willing to  impair  the  force  of  this  applauded  provision,  we  shall 
be  obliged  to  conclude,  that  the  United  States  afford  the  ex- 
traordinary spectacle  of  a  Government,  destitute  even  of  the 
shadow  of  constitutional  power  to  enforce  the  execution  of  its 
own  laws.  It  will  appear,  from  the  specimens  which  have  been 
cited,  that  the  American  Confederacy,  in  this  particular, 
stands  discriminated  from  every  other  institution  of  a  similar 
kind,  and  exhibits  a  new  and  unexampled  phenomenon  in  the 
political  world. 

The  want  of  a  mutual  guaranty  of  the  State  Governments  is 
another  capital  imperfection  in  the  Federal  plan.  There  is 
nothing  of  this  kind  declared  in  the  Articles  that  compose  it; 
and  to  imply  a  tacit  guaranty  from  consideration  of  utility, 
would  be  a  still  more  flagrant  departure  from  the  clause  which 
has  been  mentioned,  than  to  imply  a  tacit  power  of  coercion, 
from  the  like  considerations.  The  want  of  a  guaranty,  though 
it  might  in  its  consequences  endanger  the  Union,  does  not  so 
immediately  attack  its  existence,  as  the  want  of  a  constitutional 
sanction  to  its  laws. 


90     THE  FORMATION  OF  CONSTITUTIONS 

Without  a  guaranty,  the  assistance  to  be  derived  from  the 
Union  in  repelling  those  domestic  dangers,  which  may  some- 
times threaten  the  existence  of  the  State  Constitutions,  must 
be  renounced.  Usurpation  may  rear  its  crest  in  each  State, 
and  trample  upon  the  liberties  of  the  people;  while  the  National 
Government  could  legally  do  nothing  more  than  behold  its 
encroachments  with  indignation  and  regret.  A  successful  fac- 
tion may  erect  a  tyranny  on  the  ruins  of  order  and  law;  while 
no  succor  could  constitutionally  be  afforded  by  the  Union  to 
the  friends  and  supporters  of  the  Government.  The  tempest- 
uous situation  from  which  Massachusetts  has  scarcely  emerged, 
evinces  that  dangers  of  this  kind  are  not  merely  speculative. 
Who  can  determine,  what  might  have  been  the  issue  of  her  late 
convulsions,  if  the  malcontents  had  been  headed  by  a  Caesar 
or  by  a  Cromwell?  Who  can  predict,  what  effect  a  despotism, 
established  in  Massachusetts,  would  have  upon  the  liberties  of 
New  Hampshire  or  Rhode  Island ;  of  Connecticut  or  New  York? 

The  inordinate  pride  of  State  importance  has  suggested  to 
some  minds  an  objection  to  the  principle  of  a  guaranty  in  the 
Federal  Government,  as  involving  an  officious  interference  in 
the  domestic  concerns  of  the  members.  A  scruple  of  this  kind 
would  deprive  us  of  one  of  the  principal  advantages  to  be  ex- 
pected from  Union ;  and  can  only  flow  from  a  misapprehension 
of  the  nature  of  the  provision  itself.  It  could  be  no  impediment 
to  reforms  of  the  State  Constitutions  by  a  majority  of  the 
People,  in  a  legal  and  peaceable  mode.  This  right  would  re- 
main undiminished.  The  guaranty  could  only  operate  against 
changes  to  be  effected  by  violence.  Towards  the  prevention  of 
calamities  of  this  kind,  too  many  checks  cannot  be  provided. 
The  peace  of  society,  and  the  stability  of  Government,  depend 
absolutely  on  the  efficacy  of  the  precautions  adopted  on  this 
head.  Where  the  whole  power  of  the  Government  is  in  the 
hands  of  the  People,  there  is  the  less  pretence  for  the  use  of 
violent  remedies,  in  partial  or  occasional  distempers  of  the 
State.  The  natural  cure  for  an  ill-administration,  in  a  popular 
or  representative  Constitution,  is  a  change  of  men.  A  guaranty 
hy  the  National  authority  would  be  as  much  levelled  against 


DEFECTS  OF  THE  CONFEDERATION    91 

the  usurpations  of  rulers,  as  against  the  ferments  and  outrages 
of  faction  and  sedition  in  the  community. 

The  principle  of  regulating  the  contributions  of  the  States 
to  the  common  treasury  by  quotas  is  another  fundamental 
error  in  the  Confederation.    Its  repugnancy  to  an  adequate 
supply  of  the  National  exigencies  has  been  already  pointed  out, 
and  has  sufficiently  appeared  from  the  trial  which  has  been 
made  of  it.   I  speak  of  it  now  solely  with  a  view  to  equality 
among   the   States.    Those  who  have    been  accustomed   to 
contemplate  the  circumstances  which  produce  constitutional 
wealth,  must  be  satisfied  that  there  is  no  common  standard 
or  barometer,  by  which  the  degrees  of  it  can  be  ascertained. 
Neither  the  value  of  lands,  nor  the  numbers  of  the  People, 
which  have  been  successively  proposed  as  the  rule  of  State 
contributions,  has  any  pretension  to  being  a  just  representa- 
tive. If  we  compare  the  wealth  of  the  United  Netherlands  with 
that  of  Russia  or  Germany,  or  even  of  France;  and  if  we  at 
the  same  time  compare  the  total  value  of  the  lands  and  the 
aggregate  population  of  that  contracted  district  with  the  total 
value  of  the  lands  and  the  aggregate  population  of  the  immense 
regions  of  either  of  the  three  last-mentioned  countries,  we  shall 
at  once  discover,  that  there  is  no  comparison  between  the 
proportion  of  either  of  these  two  objects,  and  that  of  the  rela- 
tive wealth  of  those  nations.  If  the  like  parallel  were  to  be  run 
between  several  of  the  American  States,  it  would  furnish  a  like 
result.  Let  Virginia  be  contrasted  with  North  Carolina,  Penn- 
sylvania with  Connecticut,  or  Maryland  with  New  Jersey,  and 
we  shall  be  convinced  that  the  respective  abilities  of  those 
States,  in  relation  to  revenue,  bear  little  or  no  analogy  to  their 
comparative  stock  in  lands  or  to  their  comparative  population. 
The  position  may  be  equally  illustrated  by  a  similar  process 
between  the  counties  of  the  same  State.    No  man  who  is 
acquainted  with  the  State  of  New  York  will  doubt  that  the 
active  wealth  of  King's  County  bears  a  much  greater  propor- 
tion to  that  of  Montgomery,  than  it  would  appear  to  be,  if  we 
should  take  either  the  total  value  of  the  lands,  or  the  total 
numbers  of  the  People,  as  a  criterion! 


92    THE  FORMATION  OF  CONSTITUTIONS 

The  wealth  of  nations  depends  upon  an  infinite  variety  of 
causes.  Situation,  soil,  climate,  the  nature  of  the  productions, 
the  nature  of  the  Government,  the  genius  of  the  citizens,  the 
degree  of  information  they  possess,  the  state  of  commerce, 
of  arts,  of  industry,  these  circumstances,  and  many  more,  too 
complex,  minute,  or  adventitious,  to  admit  of  a  particular 
specification,  occasion  differences  hardly  conceivable  in  the 
relative  opulence  and  riches  of  different  countries.  The  conse- 
quence clearly  is,  that  there  can  be  no  common  measure  of 
National  wealth;  and,  of  course,  no  general  or  stationary  rule, 
by  which  the  ability  of  a  State  to  pay  taxes  can  be  determined. 
The  attempt,  therefore,  to  regulate  the  contributions  of  the 
members  of  a  Confederacy  by  any  such  rule,  cannot  fail  to  be 
productive  of  glaring  inequality  and  extreme  oppression. 

This  inequality  would  of  itself  be  sufficient  in  America  to 
work  the  eventual  destruction  of  the  Union,  if  any  mode  of 
enforcing  a  compliance  with  its  requisitions  could  be  devised. 
The  suffering  States  would  not  long  consent  to  remain  associ- 
ated upon  a  principle  which  distributes  the  public  burdens 
with  so  unequal  a  hand,  and  which  was  calculated  to  impov- 
erish and  oppress  the  citizens  of  some  States,  while  those  of 
others  would  scarcely  be  conscious  of  the  small  proportion 
of  the  weight  they  were  required  to  sustain.  This,  however, 
is  an  e\'il  inseparable  from  the  principle  of  quotas  and  requisi- 
tions. .  .  . 


CHAPTER  XI 

ORIGIN  OF  THE   FEDERAL  CONVENTION 

The  train  of  events  leading  up  to  the  Annapolis  and  Philadelphia 
Conventions  is  described  by  Madison  in  the  sketch  which  he  wrote  as  a 
preface  to  his  notes  on  the  debates  in  the  Convention  of  1787.  So  far  as 
its  immediate  purposes  were  concerned,  the  Annapolis  meeting  was  a 
fiasco;  but  the  report  drafted  by  Hamilton  went  far  to  redeem  the  situa- 
tion. It  should  be  noted  that  the  movement  for  a  betterment  of  federal 
relations  had  proceeded  outside  of  Congress  and  without  its  sanction. 
Madison,  Hamilton,  and  their  associates  were  really  planning  a  coup 
d'etat.  They  urged  a  meeting  of  delegates  from  the  States  without  refer- 
ring to  Congress,  and  then  had  the  audacity  to  send  a  copy  of  their  report 
to  Congress  "from  motives  of  respect."  It  is  also  noteworthy  that  when 
Congress  yielded  to  pressure  from  without  and  called  a  convention  at  the 
time  and  place  named  in  the  report,  it  never  once  alluded  to  the  Annapolis 
Convention.  The  difficulties  which  confronted  the  delegates  in  the  Phila- 
delphia Convention  are  graphically  described  by  Madison  in  the  Federalist. 

28.  Antecedents  of  the  Annapolis  Convention.^ 

Having  served  as  a  member  of  Congs.  through  the  period 
between  Mar.  1780  &  the  arrival  of  peice  in  1783, 1  had  become 
intimately  acquainted  with  the  public  distresses  and  the 
causes  of  them.  I  had  observed  the  successful  —  opposition 
to  every  attempt  to  procure  a  remedy  by  new  grants  of  power 
to  Congs.  I  had  found  moreover  that  despair  of  success  hung 
over  the  compromising  provision  for  the  public  necessities  of 
April  1783  which  had  been  so  elaborately  planned  and  so 
impressively  recommended  to  the  States.  Sympathizing,  under 
this  aspect  of  affairs,  in  the  alarm  of  the  friends  of  free  Govt, 
at  the  threatened  danger  of  an  abortive  result  to  the  great  & 
perhaps  last  experiment  in  its  favour,  I  could  not  be  insensible 
to  the  obligation  to  co-operate  as  far  as  I  could  in  averting  the 
calamity.  With  this  view  I  acceded  to  the  desire  of  my  fellow 
Citizens  of  the  County  that  I  should  be  one  of  its  representa- 

*  James  Madison,  Preface  to  Debates  in  the  Convention  of  17S7,  printed 
in  Farrand's  Records  of  the  Federal  Convention,  ui,  543-45. 


94    THE  FORAIATION  OF  CONSTITUTIONS 

lives  in  the  Legislature,  hoping  that  I  might  there  best  con- 
tribute to  inculcate  the  critical  posture  to  which  the  Revolu- 
tionary cause  was  reduced,  and  the  merit  of  a  leading  agency 
of  the  State  in  bringing  about  a  rescue  of  the  Union  and  the 
blessings  of  liberty  staked  on  it,  from  an  impending  catas- 
trophe. 

It  required  but  little  time  after  taking  my  seat  in  the  House 
of  Delegates  in  May  1784.  to  discover  that  however  favorable 
the  general  disposition  of  the  State  might  be  towards  the  Con- 
federacy the  Legislature  retained  the  aversion  of  its  prede- 
cessors to  transfers  of  power  from  the  State  to  the  Govt,  of  the 
Union;  notwithstanding  the  urgent  demands  of  the  Federal 
Treasury;  the  glaring  inadequacy  of  the  authorized  mode  of 
supplying  it,  the  rapid  growth  of  anarchy  in  the  Fedl.  System, 
and  the  animosity  kindled  among  its  members  by  their  con- 
flicting regulations.  .  . 

The  failure  however  of  the  varied  propositions  in  the  Legis- 
lature for  enlarging  the  powers  of  Congress,  the  continued 
failure  of  the  efforts  of  Congs.  to  obtain  from  them  the  means 
of  providing  for  the  debts  of  the  Revolution;  and  of  counter- 
vaiUng  the  commercial  laws  of  G.  B,  a  source  of  much  irrita- 
tion &  agst.  which  the  separate  efTorts  of  the  States  were  found 
worse  than  abortive;  these  Considerations  with  the  lights 
thrown  on  the  whole  subject,  by  the  free  &  full  discussion  it 
had  undergone  led  to  a  general  acquiescence  in  the  Resoln. 
passed,  on  the  21.  of  Jany.  1786.  which  proposed  &  invited  a 
meeting  of  Deputies  from  all  the  States  to  insert  the  Resol 
(See  Journal.)  i. 

The  resolution  had  been  brought  forward  some  weeks  before 
on  the  failure  of  a  proposed  grant  of  power  to  Congress  to  col- 
lect a  revenue  from  commerce,  which  had  been  abandoned  by 
its  friends  in  consequence  of  material  alterations  made  in  the 
grant  by  a  Committee  of  the  whole.  The  Resolution  tho  intro- 
duced by  Mr.  Tyler  an  influencial  member,  who  having  never 
served  in  Congress,  had  more  the  ear  of  the  House  than  those 
whose  services  there  exposed  them  to  an  imputable  bias,  was  so 
little  acceptable  that  it  was  not  then  persisted  in.   Being  now 


ORIGIN  OF  FEDERAL  CONVENTION    95 

revived  by  him,  on  the  last  day  of  the  Session,  and  being  the 
alternative  of  adjourning  without  any  effort  for  the  crisis  in  the 
affairs  of  the  Union,  it  obtained  a  general  vote;  less  however 
with  some  of  its  friends  from  a  confidence  in  the  success  of 
the  experiment  than  from  a  hope  that  it  might  prove  a  step  to  a 
more  comprehensive  &  adequate  provision  for  the  wants  of  the 
Confederacy. 

It  happened  also  that  Commissioners  who  had  been  ap- 
pointed by  Virga.  &  Maryd.  to  settle  the  jurisdiction  on  waters 
dividing  the  two  States  had,  apart  from  their  official  reports, 
recommended  a  uniformity  in  the  regulations  of  the  2  States 
on  several  subjects  &  particularly  on  those  having  relation  to 
foreign  trade.  It  appeared  at  the  same  time  that  Maryd.  had 
deemed  a  concurrence  of  her  neighbors  Pena  —  &  Delaware 
indispensable  in  such  a  case,  who  for  like  reasons  would  require 
that  of  their  neighbors.  So  apt  and  forceable  an  illustration  of 
the  necessity  of  a  uniformity  throughout  all  the  States,  could 
not  but  favour  the  passage  of  a  Resolution  which  proposed  a 
Convention  having  that  for  its  object. 

The  commissioners  appointed  by  the  Legisl :  &  who  attended 
the  Convention  were  E.  Randolph  the  Attorney  of  the  State, 
St.  Geo:  Tucker  &  J.  M.  The  designation  of  the  time  &  place 
for  its  meeting  to  be  proposed  and  communicated  to  the  States 
having  been  left  to  the  Comrs:  they  named  for  the  time  early 
September  and  for  the  place  the  City  of  Annapolis  avoiding  the 
residence  of  Congs.  and  large  Commercial  Cities  as  Hable  to 
suspicions  of  an  extraneous  influence. 

Altho  the  invited  Meeting  appeared  to  be  generally  favored, 
five  States  only  assembled ;  some  failing  to  make  appointments, 
and  some  of  the  individuals  appointed  not  hastening  their 
attendance,  the  result  in  both  cases  being  ascribed  mainly,  to  a 
belief  that  the  time  had  not  arrived  for  such  a  political  reform, 
as  might  be  expected  from  a  further  experience  of  its  necessity. 

But  in  the  interval  between  the  proposal  of  the  Convention 
and  the  time  of  its  meeting  such  had  been  the  advance  of  public 
opinion  in  the  desired  direction,  stimulated  as  it  had  been  by 
the  effect  of  the  contemplated  object  of  the  meeting,  in  turning 


96    THE  FORMATION  OF  CONSTITUTIONS 

the  general  attention  to  the  Critical  State  of  things,  and  in 
calling  forth  the  sentiments  and  exertions  of  the  most  enlight- 
ened &  influencial  patriots,  that  the  Convention  thin  as  it  was 
did  not  scruple  to  decline  the  limited  task  assigned  to  it,  and  to 
recommend  to  the  States  a  Convention  with  powers  adequate 
to  the  occasion;  nor  was  it  unnoticed  that  the  commission  of 
the  N.  Jersey  Deputation,  had  extended  its  object  to  a  general 
provision  for  exigencies  of  the  Union.  A  recommendation  for 
this  enlarged  purpose  was  accordingly  reported  by  a  Come,  to 
whom  the  subject  had  been  referred.  It  was  drafted  by  Col: 
H.  and  finally  agreed  to  unanimously  in  the  following  form. 

29.  Report  of  the  Annapolis  Convention.^ 

To  the  Honorable  the  Legislatures  of  Virginia,  Delaware, 
Pennsylvania,  New  Jersey,  and  New  York,  the  commissioners 
from  the  said  states  respectively,  assembled  at  Annapolis, 
humbly  beg  leave  to  report,  — 

That,  pursuant  to  their  several  appointments,  they  met  at 
Annapolis  in  the  state  of  Maryland,  on  the  nth  day  of  Sep- 
tember instant;  and  having  proceeded  to  a  communication  of 
their  powers,  they  found  that  the  states  of  New  York,  Pennsyl- 
vania, and  Virginia,  had,  in  substance,  and  nearly  in  the  same 
terms,  authorized  their  respective  commissioners  "to  meet 
such  commissioners  as  were  or  might  be  appointed  by  the  other 
states  in  the  Union,  at  such  time  and  place  as  should  be  agreed 
upon  by  the  said  commissioners,  to  take  into  consideration  the 
trade  and  commerce  of  the  United  States;  to  consider  how  far 
a  uniform  system  in  their  commercial  intercourse  and  regula- 
tions might  be  necessary  to  their  common  interest  and  perma- 
nent harmony;  and  to  report  to  the  several  states  such  an  act 
relative  to  this  great  object  as,  when  unanimously  ratified  by 
them,  would  enable  the  United  States  in  Congress  assembled 
effectually  to  provide  for  the  same." 

That  the  state  of  Delaware  had  given  similar  powers  to  their 
commissioners,  with  this  difference  only,  that  the  act  to  be 

'  September  14,  1786,  Elliot,  Debates  in  the  Several  State  Conventions 
on  the  Adoption  of  the  Federal  Constitution  (1866),  i,  117-18. 


ORIGIN  OF  FEDERAL  CONVENTION    97 

framed  in  virtue  of  these  powers  is  required  to  be  reported 
"  to  the  United  States  in  Congress  assembled,  to  be  agreed  to 
by  them,  and  confirmed  by  the  legislatures  of  every  state." 

That  the  state  of  New  Jersey  had  enlarged  the  object  of  their 
appointment,  empowering  their  commissioners  "to  consider 
how  far  a  uniform  system  in  their  commercial  regulations  and 
other  important  matters  might  be  necessary  to  the  common 
interest  and  permanent  harmony  of  the  several  states  " ;  and  to 
report  such  an  act  on  the  subject  as,  when  ratified  by  them, 
"would  enable  the  United  States  in  Congress  assembled  effect- 
ually to  provide  for  the  exigencies  of  the  Union." 

That  appointments  of  commissioners  have  also  been  made 
by  the  states  of  New  Hampshire,  Massachusetts,  Rhode 
Island,  and  North  Carolina,  none  of  whom,  however,  have 
attended;  but  that  no  information  has  been  received,  by  your 
commissioners,  of  any  appointment  having  been  made  by  the 
states  of  Connecticut,  Maryland,  South  Carolina,  or  Georgia. 

That  the  express  terms  of  the  powers  to  your  commissioners 
supposing  a  deputation  from  all  the  states,  and  having  for 
object  the  trade  and  commerce  of  the  United  States,  your 
commissioners  did  not  conceive  it  advisable  to  proceed  on  the 
business  of  their  mission  under  the  circumstance  of  so  partial 
and  defective  a  representation. 

Deeply  impressed,  however,  with  the  magnitude  and  import- 
ance of  the  object  confided  to  them  on  this  occasion,  your  com- 
missioners cannot  forbear  to  indulge  an  expression  of  their 
earnest  and  unanimous  wish,  that  speedy  measures  may  be 
taken  to  effect  a  general  meeting  of  the  states,  in  a  future  con- 
vention, for  the  same  and  such  other  purposes  as  the  situation 
of  public  affairs  may  be  found  to  require. 

If,  in  expressing  this  wish,  or  in  intimating  any  other  senti- 
ment, your  commissioners  should  seem  to  exceed  the  strict 
bounds  of  their  appointment,  they  entertain  a  full  confidence 
that  a  conduct  dictated  by  an  anxiety  for  the  welfare  of  the 
United  States  will  not  fail  to  receive  an  indulgent  construction. 

In  this  persuasion  your  commissioners  submit  an  opinion, 
that  the  idea  of  extending  the  powers  of  their  deputies  to  other 


98      THE  FORMATION  OF  CONSTITUTIONS 

objects  than  those  of  commerce,  which  has  been  adopted  by 
the  state  of  New  Jersey,  was  an  improvement  on  the  original 
plan,  and  will  deserve  to  be  incorporated  into  that  of  a  future 
convention.  They  are  the  more  naturally  led  to  this  conclusion, 
as,  in  the  course  of  their  reflections  on  the  subject,  they  have 
been  induced  to  think  that  the  power  of  regulating  trade  is  of 
such  comprehensive  extent,  and  will  enter  so  far  into  the  gen- 
eral system  of  the  federal  government,  that,  to  give  it  efficacy, 
and  to  obviate  questions  and  doubts  concerning  its  precise 
nature  and  limits,  may  require  a  correspondent  adjustment  of 
other  parts  of  the  federal  system.  .  .  . 

Under  this  impression,  your  commissioners,  with  the  most 
respectful  deference,  beg  leave  to  suggest  their  unanimous  con- 
viction, that  it  may  essentially  tend  to  advance  the  interests  of 
the  Union,  if  the  states,  by  whom  they  have  been  respectively 
delegated,  would  themselves  concur,  and  use  their  endeavors  to 
procure  the  concurrence  of  the  other  states,  in  the  appointment 
of  commissioners,  to  meet  at  Philadelphia  on  the  second  Mon- 
day in  May  next,  to  take  into  consideration  the  situation  of  the 
United  States,  to  devise  such  further  provisions  as  shall  appear 
to  them  necessary  to  render  the  constitution  of  the  federal 
government  adequate  to  the  exigencies  of  the  Union;  and  to 
report  such  an  act  for  that  purpose  to  the  United  States  in 
Congress  assembled,  as,  when  agreed  to  by  them,  and  after- 
wards confirmed  by  the  legislatures  of  every  state,  will  effect- 
ually provide  for  the  same. 

Though  your  commissioners  could  not  with  propriety  address 
these  observations  and  sentiments  to  any  but  the  states  they 
have  the  honor  to  represent,  they  have  nevertheless  concluded, 
from  motives  of  respect,  to  transmit  copies  of  this  report  to  the 
United  States  in  Congress  assembled,  and  to  the  executive  of 
the  other  states. 

30.  Call  for  the  Constitutional  Convention} 

Whereas  there  is  provision,  in  the  Articles  of  Confederation 
and  Perpetual  Union,  for  making  alterations  therein,  by  the 
*  February  21,  1787.  Elliot,  Debates,  i,  120. 


ORIGIN  OF  FEDERAL  CONVENTION    99 

assent  of  a  Congress  of  the  United  States,  and  of  the  legisla- 
tures of  the  several  states;  and  whereas  experience  hath  evinced 
that  there  are  defects  in  the  present  Confederation;  as  a  mean 
to  remedy  which,  several  of  the  states,  and  particularly  the 
state  of  New  York,  by  express  instructions  to  their  delegates 
in  Congress,  have  suggested  a  convention  for  the  purposes 
expressed  in  the  following  resolution;  and  such  convention 
appearing  to  be  the  most  probable  mean  of  establishing  in 
these  states  a  firm  national  government,  — 

Resolved,  That,  in  the  opinion  of  Congress,  it  is  expedient 
that,  on  the  second  Monday  in  May  next,  a  convention  of 
delegates,  who  shall  have  been  appointed  by  the  several  states, 
be  held  at  Philadelphia,  for  the  sole  and  express  purpose  of 
revising  the  Articles  of  Confederation,  and  reporting  to  Con- 
gress and  the  several  legislatures  such  alterations  and  pro- 
visions therein  as  shall,  when  agreed  to  in  Congress,  and  con- 
firmed by  the  states,  render  the  federal  Constitution  adequate 
to  the  exigencies  of  government  and  the  preservation  of  the 
Union. 

31.  Difficulties  encountered  by  the  Convention.^ 

Among  the  difficulties  encountered  by  the  convention  a 
very  important  one  must  have  lain  in  combining  the  requisite 
stability  and  energy  in  government  with  the  inviolable  atten- 
tion due  to  liberty  and  to  the  republican  form.  Without  sub- 
stantially accompHshing  this  part  of  their  undertaking,  they 
would  have  very  imperfectly  fulfilled  the  object  of  their 
appointment  or  the  expectation  of  the  pubhc;  yet  that  it  could 
not  be  easily  accomplished  will  be  denied  by  no  one  who  is 
unwilling  to  betray  his  ignorance  of  the  subject.  .  .  . 

Not  less  arduous  must  have  been  the  task  of  marking  the 
proper  line  of  partition  between  the  authority  of  the  general 
and  that  of  the  State  governments.  Every  man  will  be  sensible 
of  this  difficulty,  in  proportion  as  he  has  been  accustomed  to 
contemplate  and  discriminate  objects  extensive  and  compli- 
cated in  their  nature.  .  .  . 

1  Federalist  (Ford  ed.),  No.  37  passim. 


100    THE  FORMATION  OF  CONSTITUTIONS 

Experience  has  instructed  us  that  no  skill  in  the  science  of 
government  has  yet  been  able  to  discriminate  and  define,  with 
sufficient  certainty,  its  three  great  provinces  —  the  legislative, 
executive,  and  judiciary;  or  even  the  privileges  and  powers  of 
the  different  legislative  branches.  Questions  daily  occur  in  the 
course  of  practice,  which  prove  the  obscurity  which  reigns  in 
these  subjects,  and  which  puzzle  the  greatest  adepts  in  poUtical 

science.  .  .  . 

Besides  the  obscurity  arising  from  the  complexity  of  objects, 
and  the  imperfection  of  the  human  faculties,  the  medium 
through  which  the  conceptions  of  men  are  conveyed  to  each 
other  adds  a  fresh  embarrassment.  The  use  of  words  is  to 
express  ideas.  Perspicuity,  therefore,  requires  not  only  that 
the  ideas  should  be  distinctly  formed,  but  that  they  should  be 
expressed  by  words  distinctly  and  exclusively  appropriate  to 
them.  But  no  language  is  so  copious  as  to  supply  words  and 
phrases  for  every  complex  idea  or  so  correct  as  not  to  include 
many,  equivocally  denoting  different  ideas.  .  .  . 

Here,  then,  are  three  sources  of  vague  and  incorrect  defini- 
tions:  indistinctness  of  the  object,  imperfection  of  the  organ  of 
conception,  inadequateness  of  the  vehicle  of  ideas.  Any  one  of 
these  must  produce  a  certain  degree  of  obscurity.  The  conven- 
tion, in  delineating  the  boundary  between  the  federal  and  State 
jurisdictions,  must  have  experienced  the  full  effect  of  them  all. 

To  the  difficulties  already  mentioned  may  be  added  the 
interfering  pretensions  of  the  larger  and  smaller  States.  We 
cannot  err  in  supposing  that  the  former  would  contend  for  a 
participation  in  the  government  fully  proportioned  to  their 
superior  wealth  and  importance;  and  that  the  latter  would  not 
be  less  tenacious  of  the  equality  at  present  enjoyed  by  them. 
We  may  well  suppose  that  neither  side  would  entirely  yield  to 
the  other,  and  consequently  that  the  struggle  could  be  term- 
inated only  by  compromise.  It  is  extremely  probable,  also, 
that  after  the  ratio  of  representation  had  been  adjusted,  this 
very  compromise  must  have  produced  a  fresh  struggle  between 
the  same  parties,  to  give  such  a  turn  to  the  organization  of 
the  government,  and  to  the  distribution  of  its  powers,  as  would 


ORIGIN  OF  FEDERAL  CONVENTION     loi 

increase  the  importance  of  the  branches,  in  forming  which 
they  had  respectively  obtained  the  greatest  share  of  influence. 
There  are  features  in  the  Constitution  which  warrant  each  of 
these  suppositions;  and  as  far  as  either  of  them  is  well  founded, 
it  shows  that  the  convention  must  have  been  compelled  to  sac- 
rifice theoretical  propriety  to  the  force  of  extraneous  consider- 
ations. 

Nor  could  it  have  been  the  large  and  small  States  only, 
which  would  marshal  themselves  in  opposition  to  each  other 
on  various  points.  Other  combinations,  resulting  from  a  differ- 
ence of  local  position  and  policy,  must  have  created  additional 
difl&culties.  As  every  State  may  be  divided  into  different  dis- 
tricts, and  its  citizens  into  different  classes,  which  give  birth  to 
contending  interests  and  local  jealousies,  so  the  different  parts 
of  the  United  States  are  distinguished  from  each  other  by  a 
variety  of  circumstances,  which  produce  a  like  effect  on  a 
larger  scale.  And  although  this  variety  of  interests,  for  reasons 
sufficiently  explained  in  a  former  paper,  may  have  a  salu- 
tary influence  on  the  administration  of  the  government  when 
formed,  yet  everyone  must  be  sensible  of  the  contrary  influence, 
which  must  have  been  experienced  in  the  task  of  forming  it. 

Would  it  be  wonderful  if,  under  the  pressure  of  all  these 
difficulties,  the  c"- ''.mention  should  have  been  forced  into  some 
deviations  from  that  artificial  structure  and  regular  symmetry 
which  an  abstract  view  of  the  subject  might  lead  an  ingenious 
theorist  to  bestow  on  a  Constitution  planned  in  his  closet  or 
in  his  imagination?  The  real  wonder  is  that  so  many  difficul- 
ties should  have  been  surmounted,  and  surmounted  with  a 
unanimity  almost  as  unprecedented  as  it  must  have  been 
unexpected. 


CHAPTER  XII 

THE    CONSTITUTIONAL   CONVENTION    OF    1 787 

Delay  in  the  arrival  of  the  delegates  at  Philadelphia  prevented  the 
formal  organization  of  the  Convention  until  May  27,  when  twenty-seven 
delegates  from  seven  States  presented  themselves  with  their  credentials. 
The  credentials  of  the  Maryland  delegates  are  typical  of  all.  Altogether, 
though  not  at  any  one  time,  there  were  in  attendance  fifty-five  delegates 
from  twelve  States.  Rhode  Island  was  never  represented.  Simple  rules 
of  procedure  were  adopted.  Perhaps  the  most  important  were  those  which 
provided  that  each  State  should  have  a  single  vote  and  that  the  discus- 
sions should  be  carried  on  in  secrecy.  The  resolutions  presented  by  Ran- 
dolph were  in  reality  the  work  of  the  Virginia  delegation.  They  served 
as  a  basis  for  the  deliberations  of  the  Convention.  Their  general  trend 
was  toward  the  establishment  of  a  national  government,  and  they  had 
the  support  for  the  most  part  of  the  large  States.  It  was  by  way  of  protest 
that  Paterson,  of  New  Jersey,  offered  his  plan,  which  was  described  as 
"purely  federal."  This  New  Jersey  plan  found  general  favor  with  the 
small  States.  The  inability  of  the  large  and  small  States  to  agree  upon  the 
constitution  of  the  two  houses  of  the  federal  legislature  led  to  the  appoint- 
ment of  a  grand  committee  of  one  delegate  from  each  State.  The  recom- 
mendations of  this  committee,  commonly  known  as  "  the  great  compro- 
mise," were  eventually  adopted  by  the  Convention.  This  compromise 
did,  in  fact,  make  possible  the  further  work  of  the  Convention,  but  it  is 
only  one  of  many  compromises  which  made  the  Constitution. 

32.  Opening  Session  of  the  Federal  Convention.^ 

In  foederal- Convention. 
On  Monday  the  14th  of  May.  A.D.  1787.  and  in  the  eleventh 
year  of  the  independence  of  the  United  States  of  America, 
at  the  State-House  in  the  city  of  Philadelphia  —  in  virtue  of 
appointments  from  their  respective  States,  sundry  Deputies 
to  the  foederal-Convention  appeared  —  but,  a  majority  of  the 
States  not  being  represented,  the  Members  present  adjourned 
from  day  to  day  until  friday  the  25th  of  the  said  month,  v^^hen, 
in  virtue  of  the  said  appointments  appeared  from  the  States  of 
(names  omitted)  ... 

*  Journal  in  Farrand's  Records  of  the  Federal  Convention,  i,  1-2. 


CONSTITUTIONAL  CONVENTION,   1787     103 

In  foederal- Convention  Friday  May  25.  1787. 
It  was  moved  by  the  honorable  Robert  Morris  Esquire,  One 
of  the  Deputies  from  Pennsylvania,  that  a  President  be  elected 
by  ballot,  which  was  agreed  to  —  and  thereupon  he  nominated, 
on  the  part  of  the  said  State, 

His  Excellency  George  Washington  Esquire 
The  Members  then  proceeded  to  ballot  on  behalf  of  their  re- 
spective States  —  and,  the  ballots  being   taken,  it  appeared 
that  the  said  George  Washington  was  unanimously  elected  — 
and  he  was  conducted  to  the  chair  by 

The  honorable  Robert  Morris,  and  John  Rutledge 
Esquires.  The  President  then  proposed  to  the  House  that  they 
should  proceed  to  the  election  of  a  Secretary  —  and,  the  bal- 
lots being  taken,  it  appeared  that 

William  Jackson  Esquire  was  elected. 
The  following  credentials  were  produced  and  read  — 

[Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
the  Hon.  James  M'Henry,  Daniel  of  St.  Thomas  Jenifer, 
Daniel  Carroll,  John  Francis  Mercer,  and  Luther  Martin, 
Esqrs.,  be  appointed  and  authorized,  on  behalf  of  this  state, 
to  meet  such  deputies  as  may  be  appointed  and  authorized, 
by  any  other  of  the  United  States,  to  assemble  in  Convention 
at  Philadelphia,  for  the  purpose  of  revising  the  federal  system, 
and  to  join  with  them  in  considering  such  alterations  and  fur- 
ther provisions  as  may  be  necessary  to  render  the  Federal  Con- 
stitution adequate  to  the  exigencies  of  the  Union;  and  in 
reporting  such  an  act  for  that  purpose,  to  the  United  States  in 
Congress  assembled,  as,  when  agreed  to  by  them,  and  duly 
confirmed  by  the  several  states,  will  effectually  provide  for  the 
same;  and  the  said  deputies,  or  such  of  them  as  shall  attend  the 
said  Convention,  shall  have  full  power  to  represent  this  state 
for  the  purposes  aforesaid;  and  the  said  deputies  are  hereby 
directed  to  report  the  proceedings  of  the  said  Convention,  and 
any  act  agreed  to  therein,  to  the  next  session  of  the  General 
Assembly  of  this  state.]^ 

*  The  credentials  of  the  delegates  are  not  inserted  in  the  Journal.  The 
above  is  taken  from  Elliot's  Debates,  i,  131. 


104    THE  FORTvlATION  OF  CONSTITUTIONS 

The  House  then  appointed  Nicholas  Weaver  Messenger, 
and  Joseph  Fry  Door-Keeper. 

On  motion  of  Mr.  C.  Pinckney  —  ordered  that  a  Committee 
be  appointed  to  draw  up  rules  to  be  observed  as  the  standing 
Orders  of  the  Convention  —  and  to  report  the  same  to  the 
House.  —  a  Committee  by  ballot  was  appointed  of 

Mr.  Wythe,  Mr.  Hamilton,  and  Mr.  Pinckney. 
And  then  the  House  adjourned  'till  monday  next  at  lo  o'clock 
A.M. 

33.  The  Randolph  Resolutions} 

1.  Resolved  that  the  articles  of  Confederation  ought  to  be 
so  corrected  &  enlarged  as  to  accompUsh  the  objects  proposed 
by  their  institution;  namely,  "common  defence,  security  of 
liberty  and  general  welfare." 

2.  Resd.  therefore  that  the  rights  of  suffrage  in  the  National 
Legislature  ought  to  be  proportioned  to  the  Quotas  of  contrib- 
ution, or  to  the  number  of  free  inhabitants,  as  the  one  or  the 
other  rule  may  seem  best  in  different  cases. 

3.  Resd.  that  the  National  Legislature  ought  to  consist  of 
two  branches. 

4.  Resd.  that  the  members  of  the  first  branch  of  the  National 
Legislature  ought  to  be  elected  by  the  people  of  the  several 
States  every  for  the  term  of  ;  to  be  of  the  age  of 

years  at  least,  to  receive  liberal  stipends  by  which  they 
may  be  compensated  for  the  devotion  of  their  time  to  public 
service ;  to  be  ineligible  to  any  office  established  by  a  particular 
State,  or  under  the  authority  of  the  United  States,  except  those 
peculiarly  belonging  to  the  functions  of  the  first  branch,  during 
the  term  of  service,  and  for  the  space  of  after  its  expiration ; 

to  be  incapable  of  re-election  for  the  space  of  after  the 

expiration  of  their  term  of  ser\ice,  and  to  be  subject  to  recall. 

5.  Resold,  that  the  members  of  the  second  branch  of  the 
National  Legislature  ought  to  be  elected  by  those  of  the  first, 
out  of  a  proper  number  of  persons  nominated  by  the  individual 
Legislatures,  to  be  of  the  age  of  years  at  least;  to  hold 

^  May  29,  1787.  Farrand,  Records  of  the  Federal  Convention,  i,  20-22. 


CONSTITUTIONAL  CONVENTION,  1787    105 

their  offices  for  a  term  sufficient  to  ensure  their  independency, 
to  receive  Hberal  stipends,  by  which  they  may  be  compensated 
for  the  devotion  of  their  time  to  public  service;  and  to  be  ineli- 
gible to  any  office  estabhshed  by  a  particular  State,  or  under 
the  authority  of  the  United  States,  except  those  peculiarly 
belonging  to  the  functions  of  the  second  branch,  during  the 
term  of  ser\dce,  and  for  the  space  of  after  the  expiration 

thereof. 

6.  Resolved  that  each  branch  ought  to  possess  the  right  of 
originating  Acts;  that  the  National  Legislature  ought  to  be 
empowered  to  enjoy  the  Legislative  Rights  vested  in  Congress 
by  the  Confederation  &  moreover  to  legislate  in  all  cases  to 
which  the  separate  States  are  incompetent,  or  in  which  the 
harmony  of  the  United  States  may  be  interrupted  by  the  exer- 
cise of  individual  Legislation;  to  negative  all  laws  passed  by 
the  several  States,  contravening  in  the  opinion  of  the  National 
Legislature  the  articles  of  the  Union ;  and  to  call  forth  the  force 
of  the. Union  agst.  any  member  of  the  Union  failing  to  fulfill  its 
duty  under  the  articles  thereof. 

7.  Resd.  that  a  National  Executive  be  instituted;  to  be 
chosen  by  the  National  Legislature  for  the  term  of  years, 
to  receive  punctually  at  stated  times,  a  fixed  compensation  for 
the  services  rendered,  in  which  no  increase  or  diminution  shall 
be  made  so  as  to  affect  the  Magistracy,  existing  at  the  time  of 
increase  or  diminution,  and  to  be  ineligible  a  second  time;  and 
that  besides  a  general  authority  to  execute  the  National  laws, 
it  ought  to  enjoy  the  Executive  rights  vested  in  Congress  by 
the  Confederation. 

8.  Resd.  that  the  Executive  and  a  convenient  number  of  the 
National  Judiciary,  ought  to  compose  a  council  of  revision 
with  authority  to  examine  every  act  of  the  National  Legisla- 
ture before  it  shall  operate,  &  every  act  of  a  particular  Legis- 
lature before  a  Negative  thereon  shall  be  final;  and  that  the 
dissent  of  the  said  Council  shall  amount  to  a  rejection,  unless 
the  Act  of  the  National  Legislature  be  again  passed,  or  that  of 
a  particular  Legislature  be  again  negatived  by  of  the 
members  of  each  branch. 


io6    THE  FORMATION  OF  CONSTITUTIONS 

9.  Resd.  that  a  National  Judiciary  be  established  to  consist 
of  one  or  more  supreme  tribunals,  and  of  inferior  tribunals  to  be 
chosen  by  the  National  Legislature,  to  hold  their  offices  during 
good  behavior;  and  to  receive  punctually  at  stated  times  fixed 
compensation  for  their  services,  in  which  no  increase  or  di- 
minution shall  be  made  so  as  to  affect  the  persons  actually  in 
office  at  the  time  of  such  increase  or  diminution,  that  the 
jurisdiction  of  the  inferior  tribunals  shall  be  to  hear  &  determ- 
ine in  the  first  instance,  and  of  the  supreme  tribunal  to  hear 
and  determine  in  the  dernier  resort,  all  piracies  &  felonies  on 
the  high  seas,  captures  from  an  enemy;  cases  in  which  foreign- 
ers or  citizens  of  other  States  applying  to  such  jurisdictions  may 
be  interested,  or  which  respect  the  collection  of  the  National 
revenue;  impeachments  of  any  National  officers,  and  questions 
which  may  involve  the  national  peace  and  harmony. 

10.  Resolvd.  that  provision  ought  to  be  made  for  the  admis- 
sion of  States  lawfully  arising  within  the  limits  of  the  United 
States,  whether  from  a  voluntary  junction  of  Government  & 
Territory  or  otherwise,  with  the  consent  of  a  number  of  voices 
in  the  National  legislature  less  than  the  whole. 

11.  Resd.  that  a  Republican  Government  &  the  territory 
of  each  State,  except  in  the  instance  of  a  voluntary  junction  of 
Government  &  territory,  ought  to  be  guaranteed  by  the  United 
States  to  each  State. 

12.  Resd.  that  provision  ought  to  be  made  for  the  continu- 
ance of  Congress  and  their  authorities  and  privileges,  until  a 
given  day  after  the  reform  of  the  articles  of  Union  shall  be 
adopted,  and  for  the  completion  of  all  their  engagements. 

13.  Resd.  that  provision  ought  to  be  made  for  the  amend- 
ment of  the  Articles  of  Union  whensoever  it  shall  seem  neces- 
sary, and  that  the  assent  of  the  National  Legislature  ought  not 
to  be  required  thereto. 

14.  Resd.  that  the  Legislative  Executive  &  Judiciary  pow- 
ers within  the  several  States  ought  to  be  bound  by  oath  to 
support  the  articles  of  Union. 

15.  Resd.  that  the  amendments  which  shall  be  offered  to  the 
Confederation,  by  the  Convention  ought  at  a  proper  time,  or 


CONSTITUTIONAL  CONVENTION,   1787    107 

times,  after  the  approbation  of  Congress  to  be  submitted  to  an 
assembly  or  assemblies  of  Representatives,  recommended  by 
the  several  Legislatures  to  be  expressly  chosen  by  the  people, 
to  consider  &  decide  thereon. 

34.  The  Pater  son  Resolutions.^ 

1.  Resd.  that  the  articles  of  Confederation  ought  to  be  so 
revised,  corrected  &  enlarged,  as  to  render  the  federal  Consti- 
tution adequate  to  the  exigencies  of  Government,  &  the  preserv- 
ation of  the  Union. 

2.  Resd.  that  in  addition  to  the  powers  vested  in  the  U. 
States  in  Congress,  by  the  present  existing  articles  of  Confed- 
eration, they  be  authorized  to  pass  acts  for  raising  a  revenue, 
by  levying  a  duty  or  duties  on  all  goods  or  merchandizes  of 
foreign  growth  or  manufacture,  imported  into  any  part  of  the 
U.  States,  by  Stamps  on  paper,  vellum  or  parchment,  and  by  a 
postage  on  all  letters  or  packages  passing  through  the  general 
post-Office,  to  be  applied  to  such  federal  purposes  as  they  shall 
deem  proper  &  expedient;  to  make  rules  &  regulations  for  the 
collection  thereof;  and  the  same  from  time  to  time,  to  alter  & 
amend  in  such  manner  as  they  shall  think  proper:  to  pass  Acts 
for  the  regulation  of  trade  &  commerce  as  well  vn\h  foreign 
nations  as  with  each  other:  provided  that  all  punishments, 
fines,  forfeitures  &  penalties  to  be  incurred  for  contravening 
such  acts  rules  and  regulations  shall  be  adjudged  by  the  Com- 
mon law  Judiciarys  of  the  State  in  which  any  offence  contrary 
to  the  true  intent  &  meaning  of  such  Acts  rules  &  regulations 
shall  have  been  committed  or  perpetrated,  with  liberty  of  com- 
mencing in  the  first  instance  all  suits  &  prosecutions  for  that 
purpose  in  the  superior  Common  law  Judiciary  in  such  State, 
subject  nevertheless,  for  the  correction  of  all  errors,  both  in 
law  &  fact  in  rendering  judgment,  to  an  appeal  to  the  Judiciary 
of  the  U.  States. 

3.  Resd.  that  whenever  requisitions  shall  be  necessary,  in- 
stead of  the  rule  for  making  requisitions  mentioned  in  the 
articles  of  Confederation,  the  United  States  in  Congs.  be 
,    ^  June  15,  1787.  Farrand,  Records  of  the  Federal  Convention,  i,  242-45. 


io8    THE  FORMATION  OF  CONSTITUTIONS 

authorized  to  make  such  requisitions  in  proportion  to  the  whole 
number  of  white  &  other  free  citizens  &  inhabitants  of  every 
age  sex  and  condition  including  those  bound  to  ser\itude  for 
a  term  of  years  &  three  fifths  of  all  other  persons  not  compre- 
hended in  the  foregoing  description,  except  Indians  not  paying 
taxes;  that  if  such  requisitions  be  not  complied  with,  in  the 
time  specified  therein,  to  direct  the  collection  thereof  in  the 
non  complying  States  &  for  that  purpose  to  devdse  and  pass 
acts  directing  &  authorizing  the  same ;  provided  that  none  of  the 
powers  hereby  vested  in  the  U.  States  in  Congs.  shall  be  exer- 
cised without  the  consent  of  at  least  States,  and  in  that 
proportion  if  the  number  of  Confederated  States  should  here- 
after be  increased  or  diminished. 

4.  Resd.  that  the  U.  States  in  Congs.  be  authorized  to  elect 
a  federal  Executive  to  consist  of  persons,  to  continue  in 
office  for  the  term  of  years,  to  receive  punctually  at 
stated  times  a  fixed  compensation  for  their  services,  in  which 
no  increase  or  diminution  shall  be  made  so  as  to  affect  the  per- 
sons composing  the  Executive  at  the  time  of  such  increase  or 
diminution,  to  be  paid  out  of  the  federal  treasury;  to  be  incap- 
able of  holding  any  other  office  or  appointment  during  their 
time  of  ser\dce  and  for  years  thereafter ;  to  be  ineligible  a 
second  time,  &  removeable  by  Congs.  on  application  by  a  ma- 
jority of  the  Executives  of  the  several  States;  that  the  Execu- 
tives besides  their  general  authority  to  execute  the  federal  acts 
ought  to  appoint  all  federal  officers  not  otherwise  provided  for, 
&  to  direct  all  military  operations;  provided  that  none  of  the 
persons  composing  the  federal  Executive  shall  on  any  occasion 
take  command  of  any  troops,  so  as  personally  to  conduct  any 
enterprise  as  General,  or  in  other  capacity. 

5.  Resd.  that  a  federal  Judiciary  be  established  to  consist 
of  a  supreme  Tribunal  the  Judges  of  which  to  be  appointed  by 
the  Executive,  &  to  hold  their  offices  during  good  behavior,  to 
receive  punctually  at  stated  times  a  fixed  compensation  for 
their  services  in  which  no  increase  or  diminution  shall  be  made, 
so  as  to  affect  the  persons  actually  in  office  at  the  time  of  such 
increase  or  diminution;  that  the  Judiciary  so  established  shall 


CONSTITUTIONAL  CONVENTION,   1787    109 

have  authority  to  hear  &  determine  in  the  first  instance  on  all 
impeachments  of  federal  officers,  &  by  way  of  appeal  in  the 
dernier  resort  in  all  cases  touching  the  rights  of  Ambassadors, 
in  all  cases  of  captures  from  an  enemy,  in  all  cases  of  piracies 
&  felonies  on  the  high  seas,  in  all  cases  in  which  foreigners 
may  be  interested,  in  the  construction  of  any  treaty  or  treaties, 
or  which  may  arise  on  any  of  the  Acts  for  regulation  of  trade, 
or  the  collection  of  the  federal  Revenue :  that  none  of  the  Judi- 
ciary shall  during  the  time  they  remain  in  Office  be  capable  of 
receiving  or  holding  any  other  office  or  appointment  during 
their  time  of  service,  or  for  thereafter. 

6.  Resd.  that  all  Acts  of  the  U.  States  in  Congs.  made  by 
virtue  &  in  pursuance  of  the  powers  hereby  &  by  the  articles 
of  confederation  vested  in  them,  and  all  Treaties  made  &  rati- 
fied under  the  authority  of  the  U.  States  shall  be  the  supreme 
law  of  the  respective  States  so  far  forth  as  those  Acts  or 
Treaties  shall  relate  to  the  said  States  or  their  Citizens,  and 
that  the  Judiciary  of  the  several  States  shall  be  bound  thereby 
in  their  decisions,  any  thing  in  the  respective  laws  of  the 
Individual  States  to  the  contrary  not  with  standing;  and  that 
if  any  State,  or  any  body  of  men  in  any  State  shall  oppose  or 
prevent  ye.  carrying  into  execution  such  acts  or  treaties,  the 
federal  Executive  shall  be  authorized  to  call  forth  ye  power  of 
the  Confederate  States,  or  so  much  thereof  as  may  be  necessary 
to  enforce  and  compel  an  obedience  to  such  Acts,  or  an  Observ- 
ance of  such  Treaties. 

7.  Resd.  that  provision  be  made  for  the  admission  of  new 
States  into  the  Union. 

8.  Resd.  the  rule  for  naturaUzation  ought  to  be  the  same  in 
every  State. 

9.  Resd.  that  a  Citizen  of  one  State  committing  an  offence 
in  another  State  of  the  Union,  shall  be  deemed  guilty  of  the 
same  offence  as  if  it  had  been  committed  by  a  Citizen  of  the 
State  in  which  the  Offence  was  committed. 


no    THE  FORMATION  OF  CONSTITUTIONS 

35.  The  Great  Compromise} 

The  grand  committee  met.  Mr.  Gerry  was  chosen  chairman. 

The  committee  proceeded  to  consider  in  what  manner  they 
should  discharge  the  business  with  which  they  were  entrusted. 
By  the  proceedings  in  the  convention  they  were  so  equally 
divided  on  the  important  question  of  representation  in  the  two 
branches,  that  the  idea  of  a  conciliatory  adjustment  must  have 
been  in  contemplation  of  the  house  in  the  appointment  of  this 
committee.  But  still  how  to  effect  this  salutary  purpose  was 
the  question.  Many  of  the  menibers,  impressed  with  the  utility 
of  a  general  government,  connected  with  it  the  indispensible 
necessity  of  a  representation  from  the  states  according  to  their 
numbers  and  wealth;  while  others,  equally  tenacious  of  the  rights 
of  the  states,  would  admit  of  no  other  representation  but  such 
as  was  strictly  federal,  or  in  other  words,  equality  of  suffrage. 
This  brought  on  a  discussion  of  the  principles  on  which  the 
house  had  divided,  and  a  lengthy  recapitulation  of  the  argu- 
ments advanced  in  the  house  in  support  of  these  opposite 
propositions.  As  I  had  not  openly  explained  my  sentiments  on 
any  former  occasion  on  this  question,  but  constantly  in  giving 
my  vote,  showed  my  attachment  to  the  national  government  on 
federal  principles,  I  took  this  occasion  to  explain  my  motives  — 
{see  a  copy  of  my  speech  hereunto  annexed.) 

These  remarks  gave  rise  to  a  motion  of  Dr.  Franklin,  which 
after  some  modification  was  agreed  to,  and  made  the  basis  of 
the  following  report  to  the  committee. 

The  committee  to  whom  was  referred  the  eighth  resolution, 
reported  from  the  committee  of  the  whole  house,  and  so  much 
of  the  seventh  as  had  not  been  decided  on,  submit  the  following 
report: 

That  the  subsequent  propositions  be  recommended  to  the 
convention,  on  condition  that  both  shall  be  generally  adopted. 

That  in  the  first  branch  of  the  legislature,  each  of  the  states 
now  in  the  union,  be  allowed  one  member  for  every  40,000 

'  Yates's  Notes,  July  3,  1787.  Farrand,  Records  of  the  Federal  Conven- 
tion, I,  522-23. 


CONSTITUTIONAL  CONVENTION,  1787     in 

inhabitants,  of  the  description  reported  in  the  seventh  resolu- 
tion of  the  committee  of  the  whole  house  —  That  each  state, 
not  containing  that  number,  shall  be  allowed  one  member. 

That  all  bills  for  raising  or  apportioning  money,  and  for 
fixing  salaries  of  the  officers  of  government  of  the  United  States, 
shall  originate  in  the  first  branch  of  the  legislature,  and  shall 
not  be  altered  or  amended  by  the  second  branch;  and  that  no 
money  shall  be  drawn  from  the  public  treasury,  but  in  pursu- 
ance of  appropriations  to  be  originated  in  the  first  branch. 

That  in  the  second  branch  of  the  legislature,  each  state  shall 
have  an  equal  vote. 


CHAPTER  XIII 

THE   CONSTITUTION   OF  THE   UNITED    STATES 

Any  attempt  to  analyze  the  Constitution  in  systematic  fashion  must 
fail,  for  the  simple  reason  that  the  Constitution  is  not  a  theoretically 
conceived  nor  a  logically  drafted  document.  It  was  not  made  by  doctrin- 
aires, but  by  hard-headed  men  of  affairs.  They  had  met  to  remedy  certain 
definite  defects  in  the  government  set  up  by  the  Articles  of  Confederation. 
For  the  most  part,  the  remedies  which  they  applied  were  such  as  they 
knew  by  practical  experience.  They  invented  little;  but  they  made  some 
novel  adjustments,  and  they  frequently  sacrificed  logical  completeness 
and  precision  to  practical  exigencies.  As  Professor  Dicey  well  says,  a 
federal  State  is  only  "a  political  contrivance  intended  to  reconcile 
national  unity  and  power  with  the  maintenance  of  state  rights."  The 
constitution  of  such  a  State  must  inevitably  be  a  "complicated  contract," 
worked  out  by  mutual  concessions  between  the  parties  concerned. 

36.  The  Constitution  as  adopted} 

We  the  People  of  the  United  States,  in  Order  to  form  a  more 
perfect  Union,  establish  Justice,  insure  domestic  Tranquility, 
provide  for  the  common  defence,  promote  the  general  Wel- 
fare, and  secure  the  Blessings  of  Liberty  to  ourselves  and  our 
Posterity,  do  ordain  and  establish  this  Constitution  for 
the  United  States  of  America. 

Article  I. 

Section,  i.  All  legislative  Powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist 
of  a  Senate  and  House  of  Representatives. 

Section.  2.  The  House  of  Representatives  shall  be  composed 
of  Members  chosen  every  second  Year  by  the  People  of  the 
several  States,  and  the  Electors  in  each  State  shall  have  the 
Qualifications  requisite  for  Electors  of  the  most  numerous 
Branch  of  the  State  Legislature. 

No  Person  shall  be  a  Representative  who  shall  not  have 
attained  to  the  Age  of  twenty-five  Years,  and  been  seven  Years 
^  Revised  Statutes  oj  the  United  States  (1878),  17-27. 


CONSTITUTION  OF  UNITED  STATES     113 

a  Citizen  of  the  United  States,  and  who  shall  not,  when  elected, 
be  an  Inhabitant  of  that  State  in  which  he  shall  be  chosen. 

Representatives  and  direct  Taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union, 
according  to  their  respective  Numbers,  which  shall  be  deter- 
mined by  adding  to  the  whole  Number  of  free  Persons,  includ- 
ing those  bound  to  Service  for  a  Term  of  Years,  and  excluding 
Indians  not  taxed,  three  fifths  of  all  other  Persons.  The  actual 
Enumeration  shall  be  made  within  three  Years  after  the  first 
Meeting  of  the  Congress  of  the  United  States,  and  within  every 
subsequent  Term  of  ten  Years,  in  such  Manner  as  they  shall 
by  Law  direct.  The  Number  of  Representatives  shall  not  ex- 
ceed one  for  every  thirty  Thousand,  but  each  State  shall  have 
at  Least  one  Representative;  and  until  such  enumeration  shall 
be  made,  the  State  of  New  Hampshire  shall  be  entitled  to  chuse 
three,  Massachusetts  eight,  Rhode-Island  and  Providence 
Plantations  one,  Connecticut  five.  New- York  six.  New  Jersey 
four,  Pennsylvania  eight,  Delaware  one,  Maryland  six,  Vir- 
ginia ten,  North  Carolina  five.  South  Carolina  five,  and  Georgia 
three. 

When  vacancies  happen  in  the  Representation  from  any 
State,  the  Executive  Authority  thereof  shall  issue  Writs  of 
Election  to  fill  such  Vacancies. 

The  House  of  Representatives  shall  chuse  their  Speaker  and 
other  OflScers;  and  shall  have  the  sole  Power  of  Impeachment. 

Section.  3.  The  Senate  of  the  United  States  shall  be  com- 
posed of  two  Senators  from  each  State,  chosen  by  the  Legislature 
thereof,  for  six  Years;  and  each  Senator  shall  have  one  Vote. 

Immediately  after  they  shall  be  assembled  in  Consequence  of 
the  first  Election,  they  shall  be  divided  as  equally  as  may  be 
into  three  Classes.  The  Seats  of  the  Senators  of  the  first  Class 
shall  be  vacated  at  the  Expiration  of  the  second  year,  of  the 
second  Class  at  the  Expiration  of  the  fourth  Year,  and  of  the 
third  Class  at  the  Expiration  of  the  sixth  Year,  so  that  one 
third  may  be  chosen  every  second  Year;  and  if  Vacancies  hap- 
pen by  Resignation,  or  otherwise,  during  the  Recess  of  the 
Legislature  of  any  State,  the  Executive  thereof  may  make  tern- 


114    THE  FOR^L\TION  OF  CONSTITimONS 

porary  Appointments  until  the  next  Meeting  of  the  Legislature, 
which  shall  tlien  till  such  Vacancies. 

No  Person  shall  be  a  Senator  who  shall  not  have  attained  to 
the  Age  of  thirty  Years,  and  been  nine  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  Inhab- 
itant of  that  State  for  which  he  shall  be  chosen. 

The  Vice  President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  Vote,  unless  they  be  equally 
divided. 

The  Senate  shall  chuse  their  other  Officers,  and  also  a  Presi- 
dent pro  tempore,  in  the  Absence  of  the  Vice  President,  or  when 
he  shall  exercise  the  Office  of  President  of  the  United  States. 

The  Senate  shall  have  the  sole  Power  to  try  all  Impeach- 
ments. When  sitting  for  that  Purpose,  they  shall  be  on  Oath  or 
Affirmation.  When  the  President  of  the  United  States  is  tried, 
the  Chief  Justice  shall  preside :  And  no  Person  shall  be  convicted 
without  the  Concurrence  of  two  thirds  of  the  ^lembcrs  present. 

Judgment  in  Cases  of  Impeachment  shall  not  extend  further 
than  to  removal  from  Office,  and  disqualification  to  hold  and 
enjoy  any  Office  of  honor,  Trust  or  Profit  under  the  United 
States:  but  the  Party  con\'icted  shall  nevertheless  be  liable 
and  subject  to  Indictment,  Trial,  Judgment  and  Punishment, 
according  to  Law. 

Section.  4.  The  Times,  Places  and  Manner  of  holding  Elec- 
tions for  Senators  and  Representatives,  shall  be  prescribed  in 
each  State  by  the  Legislature  thereof;  but  the  Congress  may  at 
any  time  by  Law  make  or  alter  such  Regulations,  except  as  to 
the  Places  of  chusing  Senators. 

The  Congress  shall  assemble  at  least  once  in  every  Year,  and 
such  Meeting  shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  Law  appoint  a  ditTerent  Day. 

Section.  5.  Each  House  shall  be  the  Judge  of  the  Elections, 
Returns  and  Qualifications  of  its  own  Members,  and  a  Majority 
of  each  shall  constitute  a  Quorum  to  do  Business;  but  a  smaller 
Number  may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  Attendance  of  absent  Members,  in  such  Manner, 
and  under  such  Penalties  as  each  House  may  provide. 


CONSTITUTION  OF  UNITED  STATES     115 

Each  House  may  determine  the  Rules  of  its  Proceedings, 
punish  its  Members  for  disorderly  Behavior,  and,  with  the  Con- 
currence of  two  thirds,  expel  a  Member. 

Each  House  shall  keep  a  Journal  of  its  Proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  Parts  as  may  in 
their  Judgment  require  Secrecy;  and  the  Yeas  and  Nays  of  the 
Members  of  either  House  on  any  question  shall,  at  the  Desire  of 
one  fifth  of  those  present,  be  entered  on  the  Journal. 

Neither  House,  during  the  Session  of  Congress,  shall,  without 
the  Consent  of  the  other,  adjourn  for  more  than  three  days,  nor 
to  any  other  Place  than  that  in  which  the  two  Houses  shall  be 
sitting. 

Section.  6.  The  Senators  and  Representatives  shall  receive 
a  Compensation  for  their  Services,  to  be  ascertained  by  Law, 
and  paid  out  of  the  Treasury  of  the  United  States.  They  shall 
in  all  Cases,  except  Treason,  Felony  and  Breach  of  the  Peace, 
be  privileged  from  Arrest  during  their  Attendance  at  the  Ses- 
sion of  their  respective  Houses,  and  in  going  to  and  returning 
from  the  same;  and  for  any  Speech  or  Debate  in  either  House, 
they  shall  not  be  questioned  in  any  other  Place. 

No  Senator  or  Representative  shall,  during  the  Time  for 
which  he  was  elected,  be  appointed  to  any  civil  Office  under  the 
Authority  of  the  United  States,  which  shall  have  been  created, 
or  the  Emoluments  whereof  shall  have  been  encreased  during 
such  time;  and  no  Person  holding  any  Office  under  the  United 
States,  shall  be  a  Member  of  either  House  during  his  Continu- 
ance in  Office. 

Section.  7.  All  Bills  for  raising  Revenue  shall  originate  in 
the  House  of  Representatives;  but  the  Senate  may  propose  or 
concur  with  Amendments  as  on  other  Bills. 

Every  Bill  which  shall  have  passed  the  House  of  Representa- 
tives and  the  Senate,  shall,  before  it  become  a  Law,  be  pre- 
sented to  the  President  of  the  United  States;  If  he  approve  he 
shall  sign  it,  but  if  not  he  shall  return  it,  with  his  Objections 
to  that  House  in  which  it  shall  have  originated,  who  shall  enter 
the  Objections  at  large  on  their  Journal,  and  proceed  to  recon- 
sider it.  If  after  such  Reconsideration  two  thirds  of  that  House 


ii6    THE  FORMATION  OF  CONSTITUTIONS 

shall  agree  to  pass  the  Bill,  it  shall  be  sent,  together  with  the 
Objections,  to  the  other  House,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  by  two  thirds  of  that  House,  it 
shall  become  a  Law.  But  in  all  such  Cases  the  Votes  of  both 
Houses  shall  be  determined  by  Yeas  and  Nays,  and  the  Names 
of  the  Persons  voting  for  and  against  the  Bill  shall  be  entered 
on  the  Journal  of  each  House  respectively.  If  any  Bill  shall 
not  be  returned  by  the  President  within  ten  Days  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  the  Same 
shall  be  a  law,  in  like  Manner  as  if  he  had  signed  it,  unless  the 
Congress  by  their  Adjournment  prevent  its  Return,  in  which 
Case  it  shall  not  be  a  Law. 

Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence 
of  the  Senate  and  House  of  Representatives  may  be  necessary 
(except  on  a  question  of  Adjournment)  shall  be  presented  to  the 
President  of  the  United  States;  and  before  the  Same  shall  take 
Effect,  shall  be  approved  by  him,  or  being  disapproved  by  him, 
shall  be  repassed  by  two  thirds  of  the  Senate  and  House  of 
Representatives,  according  to  the  Rules  and  Limitations  pre- 
scribed in  the  Case  of  a  Bill. 

Section.  8.  The  Congress  shall  have  Power  To  lay  and 
collect  Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts 
and  pro\'ide  for  the  common  Defence  and  general  Welfare  of 
the  United  States;  but  all  Duties,  Imposts  and  Excises  shall  be 
uniform  throughout  the  United  States; 

To  borrow  Money  on  the  Credit  of  the  United  States; 

To  regulate  Commerce  with  foreign  Nations,  and  among  the 
several  States,  and  with  the  Indian  Tribes; 

To  establish  an  uniform  Rule  of  Naturalization,  and  uniform 
Laws  on  the  subject  of  Bankruptcies  throughout  the  United 
States; 

To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign 
Coin,  and  fix  the  Standard  of  Weights  and  Measures; 

To  provide  for  the  Punishment  of  counterfeiting  the  Securi- 
ties and  current  Coin  of  the  United  States; 

To  establish  Post  Offices  and  post  Roads; 

To  promote  the  Progress  of  Science  and  useful  Arts,  by  secur- 


CONSTITUTION  OF  UNITED  STATES     117 

ing  for  limited  Times  to  Authors  and  Inventors  the  exclusive 
Right  to  their  respective  Writings  and  Discoveries; 

To  constitute  Tribunals  inferior  to  the  supreme  Court; 

To  define  and  Punish  Piracies  and  Felonies  committed  on  the 
high  Seas,  and  Offences  against  the  Law  of  Nations; 

To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and 
make  Rules  concerning  Captures  on  Land  and  Water; 

To  raise  and  support  Armies,  but  no  Appropriation  of  Money 
to  that  Use  shall  be  for  a  longer  Term  than  two  Years; 

To  provide  and  maintain  a  Navy; 

To  make  Rules  for  the  Government  and  Regulation  of  the 
land  and  naval  Forces; 

To  provide  for  calling  forth  the  Militia  to  execute  the 
Laws  of  the  Union,  suppress  Insurrections  and  repel  Inva- 
sions; 

To  provide  for  organizing,  arming,  and  disciplining,  the 
Militia,  and  for  governing  such  Part  of  them  as  may  be  em- 
ployed in  the  Service  of  the  United  States,  reserving  to  the 
States  respectively,  the  Appointment  of  the  Officers,  and  the 
Authority  of  training  the  Militia  according  to  the  discipline 
prescribed  by  Congress; 

To  exercise  exclusive  Legislation  in  all  Cases  whatsoever, 
over  such  District  (not  exceeding  ten  Miles  square)  as  may,  by 
Cession  of  particular  States,  and  the  Acceptance  of  Congress, 
become  the  Seat  of  the  Government  of  the  United  States,  and 
to  exercise  like  Authority  over  all  Places  purchased  by  the 
Consent  of  the  Legislature  of  the  State  in  which  the  Same  shall 
be,  for  the  Erection  of  Forts,  Magazines,  Arsenals,  dock-Yards, 
and  other  needful  Buildings;  —  And 

To  make  all  Laws  which  shall  be  necessary  and  proper  for 
carrying  into  Execution  the  foregoing  Powers,  and  all  other 
Powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  Department  or  Officer  thereof. 

Section.  9.  The  Migration  or  Importation  of  such  Persons 
as  any  of  the  States  now  existing  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  Congress  prior  to  the  Year  one 
thousand  eight  hundred  and  eight,  but  a  Tax  or  Duty  may  be 


ii8    THE  FORMATION  OF  CONSTITUTIONS 

imposed  on  such  Importation,  not  exceeding  ten  dollars  for 
each  Person. 

The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  sus- 
pended, unless  when  in  Cases  of  Rebellion  or  Invasion  the 
public  Safety  may  require  it. 

No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

No  Capitation,  or  other  direct,  tax  shall  be  laid,  unless  in 
Proportion  to  the  Census  or  Enumeration  herein  before  directed 
to  be  taken. 

No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any 
State. 

No  Preference  shall  be  given  by  any  Regulation  of  Commerce 
or  Revenue  to  the  Ports  of  one  State  over  those  of  another :  nor 
shall  Vessels  bound  to,  or  from,  one  State,  be  obliged  to  enter, 
clear,  or  pay  Duties  in  another. 

No  Money  shall  be  drawn  from  the  Treasury,  but  in  Conse- 
quence of  Appropriations  made  by  Law;  and  a  regular  State- 
ment and  Account  of  the  Receipts  and  Expenditures  of  all 
public  Money  shall  be  published  from  time  to  time. 

No  Title  of  NobiUty  shall  be  granted  by  the  United  States: 
And  no  Person  holding  any  Office  of  Profit  or  Trust  under  them, 
shall,  without  the  Consent  of  the  Congress,  accept  of  any  pre- 
sent. Emolument,  Office,  or  Title,  of  any  kind  whatever,  from 
any  King,  Prince,  or  foreign  State. 

Section,  io.  No  State  shall  enter  into  any  Treaty,  Alliance, 
or  Confederation;  grant  Letters  of  Marque  and  Reprisal;  coin 
Money;  emit  Bills  of  Credit;  make  any  Thing  but  gold  and 
silver  Coin  a  Tender  in  Payment  of  Debts;  pass  any  Bill  of 
Attainder,  ex  post  facto  Law,  or  Law  impairing  the  Obligation 
of  Contracts,  or  grant  any  Title  of  Nobility. 

No  State  shall,  without  the  Consent  of  the  Congress,  lay  any 
Imposts  or  Duties  on  Imports  or  Exports,  except  what  may  be 
absolutely  necessary  for  executing  it's  inspection  Laws:  and  the 
net  Produce  of  all  Duties  and  Imposts,  laid  by  any  State  on 
Imports  or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  the 
United  States ;  and  all  such  Laws  shall  be  subject  to  the  Revision 
and  Controul  of  the  Congress. 


CONSTITUTION  OF  UNITED  STATES     119 

No  State  shall,  without  the  Consent  of  Congress,  lay  any 
Duty  of  Tonnage,  keep  Troops,  or  Ships  of  War  in  time  of 
Peace,  enter  into  any  Agreement  or  Compact  with  another 
State,  or  with  a  foreign  Power,  or  engage  in  War,  unless  actu- 
ally invaded,  or  in  such  imminent  Danger  as  will  not  admit  of 
Delay. 

Article  II. 

Section,  i.  The  executive  Power  shall  be  vested  in  a  Presid- 
ent of  the  United  States  of  America.  He  shall  hold  his  Office 
during  the  Term  of  four  Years,  and,  together  with  the  Vice 
President,  chosen  for  the  same  Term,  be  elected,  as  follows 

Each  State  shall  appoint,  in  such  Manner  as  the  Legislature 
thereof  may  direct,  a  Number  of  Electors,  equal  to  the  whole 
Number  of  Senators  and  Representatives  to  which  the  State 
may  be  entitled  in  the  Congress:  but  no  Senator  or  Representa- 
tive, or  Person  holding  an  Office  of  Trust  or  Profit  under  the 
United  States,  shall  be  appointed  an  Elector. 

The  electors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  two  Persons,  of  whom  one  at  least  shall  not  be  an 
Inhabitant  of  the  same  State  with  themselves.  And  they  shall 
make  a  List  of  all  the  Persons  voted  for,  and  of  the  Number  of 
Votes  for  each ;  which  List  they  shall  sign  and  certify,  and  trans- 
mit sealed  to  the  Seat  of  the  Government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  Presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  Certificates,  and  the  Votes  shall  then  be 
counted.  The  Person  having  the  greatest  Number  of  Votes 
shall  be  the  President,  if  such  Number  be  a  Majority  of  the 
whole  Number  of  Electors  appointed;  and  if  there  be  more 
than  one  who  have  such  Majority  and  have  an  equal  Number 
of  Votes,  then  the  House  of  Representatives  shall  immediately 
chuse  by  Ballot  one  of  them  for  President;  and  if  no  person 
have  a  Majority,  then  from  the  five  highest  on  the  List  the 
said  House  shall  in  Hke  Manner  chuse  the  President.  But  in 
chusing  the  President,  the  Votes  shall  be  taken  by  States,  the 
Representation  from  each  State  having  one  Vote;  A  quorum 


120    THE  FORMATION  OF  CONSTITUTIONS 

for  this  Purpose  shall  consist  of  a  Member  or  Members  from 
two-thirds  of  the  States,  and  a  Majority  of  all  the  States  shall 
be  necessary  to  a  Choice.  In  every  Case,  after  the  Choice  of 
the  President,  the  person  having  the  greatest  Number  of  Votes 
of  the  Electors  shall  be  the  Vice  President.  But  if  there  should 
remain  two  or  more  who  have  equal  Votes,  the  Senate  shall 
chuse  from  them  by  Ballot  the  Vice-President. 

The  Congress  may  determine  the  Time  of  chusing  the  Elect- 
ors, and  the  Day  on  which  they  shall  give  their  Votes;  which 
Day  shall  be  the  same  throughout  the  United  States. 

No  Person  except  a  natural  bom  Citizen,  or  a  Citizen  of  the 
United  States,  at  the  time  of  the  Adoption  of  this  Constitution, 
shall  be  eligible  to  the  Office  of  President;  neither  shall  any  Per- 
son be  eligible  to  that  Office  who  shall  not  have  attained  to  the 
Age  of  thirty  five  Years,  and  been  fourteen  Years  a  Resident 
within  the  United  States. 

In  Case  of  the  Removal  of  the  President  from  Office,  or  of 
his  Death,  Resignation,  or  Inability  to  discharge  the  Powers 
and  Duties  of  the  said  Office,  the  same  shall  devolve  on  the 
Vice  President,  and  the  Congress  may  by  Law  provide  for  the 
Case  of  Removal,  Death,  Resignation,  or  Inability,  both  of  the 
President  and  Vice  President,  declaring  what  Officer  shall  then 
act  as  President,  and  such  Officer  shall  act  accordingly,  until 
the  Disability  be  removed,  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  Times,  receive  for  his  Services, 
a  Compensation,  which  shall  neither  be  encreased  nor  dimin- 
ished during  the  Period  for  which  he  shall  have  been  elected, 
and  he  shall  not  receive  within  that  Period  any  other  Emolu- 
ment from  the  United  States,  or  any  of  them. 

Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take 
the  following  Oath  or  Affirmation:  —  "  I  do  solemnly  swear  (or 
"  affirm)  that  I  will  faithfully  execute  the  Office  of  President  of 

the  United  States,  and  will  to  the  best  of  my  Ability,  preserv^e, 
"protect  and  defend  the  Constitution  of  the  United  States." 

Section.  2.  The  President  shall  be  Commander  in  Chief  of 
the  Army  and  Navy  of  the  United  States,  and  of  the  Militia  of 
the  several  States,  when  called  into  the  actual  Service  of  the 


CONSTITUTION  OF  UNITED  STATES     121 

United  States;  he  may  require  the  Opinion,  in  writing,  of  the 
principal  Ofl&cer  in  each  of  the  executive  Departments,  upon 
any  Subject  relating  to  the  Duties  of  their  respective  Offices, 
and  he  shall  have  Power  to  grant  Reprieves  and  Pardons  for 
Offences  against  the  United  States,  except  in  Cases  of  Impeach- 
ment. 

He  shall  have  Power,  by  and  with  the  Advice  and  Consent  of 
the  Senate,  to  make  Treaties,  provided  two  thirds  of  the  Sen- 
ators present  concur;  and  he  shall  nominate,  and  by  and  with 
the  Advice  and  Consent  of  the  Senate,  shall  appoint  Ambassa- 
dors, other  public  Ministers  and  Consuls,  Judges  of  the  supreme 
Court,  and  all  other  Officers  of  the  United  States,  whose 
Appointments  are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  Law:  but  the  Congress  may  by  Law  vest 
the  Appointment  of  such  inferior  Officers,  as  they  think  proper, 
in  the  President  alone,  in  the  Courts  of  Law,  or  in  the  Heads  of 
Departments. 

The  President  shall  have  Power  to  fill  up  all  Vacancies  that 
may  happen  during  the  Recess  of  the  Senate,  by  granting  Com- 
missions which  shall  expire  at  the  End  of  their  next  Session. 

Section.  3.  He  shall  from  time  to  time  give  to  the  Congress 
Information  of  the  State  of  the  Union,  and  recommend  to  their 
Consideration  such  Measures  as  he  shall  judge  necessary  and 
expedient;  he  may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them,  and  in  Case  of  Disagreement  between 
them,  with  Respect  to  the  Time  of  Adjournment,  he  may 
adjourn  them  to  such  Time  as  he  shall  think  proper;  he  shall 
receive  Ambassadors  and  other  public  Ministers;  he  shall  take 
Care  that  the  Laws  be  faithfully  executed,  and  shall  Commis- 
sion all  the  Officers  of  the  United  States. 

Section.  4.  The  President,  Vice  President  and  all  civil 
Officers  of  the  United  States,  shall  be  removed  from  Office  on 
Impeachment  for,  and  Conviction  of,  Treason,  Bribery,  or  other 
high  Crimes  and  Misdemeanors. 


122    THE  FORMATION  OF  CONSTITUTIONS 

Article  III. 

Section,  i.  The  judicial  Power  of  the  United  States,  shall  be 
vested  in  one  supreme  Court,  and  in  such  inferior  Courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish.  The 
Judges,  both  of  the  supreme  and  inferior  Courts,  shall  hold 
their  Ofl&ces  during  good  Behavior,  and  shall,  at  stated  Times, 
receive  for  their  Services,  a  Compensation,  which  shall  not  be 
diminished  during  their  Continuance  in  OflSce. 

Section.  2.  The  judicial  Power  shall  extend  to  all  Cases,  in 
Law  and  Equity,  arising  under  this  Constitution,  the  Laws  of 
the  United  States,  and  Treaties  made,  or  which  shall  be  made, 
under  their  Authority;  —  to  all  Cases  affecting  Ambassadors, 
other  public  Ministers  and  Consuls;  —  to  all  Cases  of  admiralty 
and  maritime  Jurisdiction;  —  to  Controversies  to  which  the 
United  States  shall  be  a  Party;  — to  Controversies  between 
two  or  more  States;  —  between  a  State  and  Citizens  of  another 
State;  —  between  Citizens  of  different  States,  —  between  Citi- 
zens of  the  same  State  claiming  Lands  under  Grants  of  differ- 
ent States,  and  between  a  State,  or  the  Citizens  thereof,  and 
foreign  States,  Citizens  or  Subjects. 

In  all  Cases  affecting  Ambassadors,  other  public  Ministers 
and  Consuls,  and  those  in  which  a  State  shall  be  Party,  the 
supreme  Court  shall  have  original  Jurisdiction.  In  all  the  other 
Cases  before  mentioned,  the  supreme  Court  shall  have  appellate 
Jurisdiction,  both  as  to  Law  and  Fact,  with  such  Exceptions, 
and  under  such  Regulations  as  the  Congress  shall  make. 

The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment, 
shall  be  by  Jury ;  and  such  Trial  shall  be  held  in  the  State  where 
the  said  Crimes  shall  have  been  committed;  but  when  not 
committed  within  any  State,  the  Trial  shall  be  at  such  Place  or 
Places  as  the  Congress  may  by  Law  have  directed. 

Section.  3.  Treason  against  the  United  States,  shall  consist 
only  in  levying  War  against  them,  or  in  adhering  to  their  Ene- 
mies, giving  them  Aid  and  Comfort.  No  Person  shall  be  con- 
victed of  Treason  unless  on  the  Testimony  of  two  Witnesses 
to  the  same  overt  Act,  or  on  Confession  in  open  Court. 


CONSTITUTION  OF  UNITED  STATES     123 

The  Congress  shall  have  Power  to  declare  the  Punishment 
of  Treason,  but  no  Attainder  of  Treason  shall  work  Corruption 
of  Blood,  or  Forfeiture  except  during  the  Life  of  the  Person 
attainted. 

Article  IV. 

Section,  i.  Full  Faith  and  Credit  shall  be  given  in  each 
State  to  the  public  Acts,  Records,  and  judicial  Proceedings  of 
every  other  State.  And  the  Congress  may  by  general  Laws 
prescribe  the  Manner  in  which  such  Acts,  Records  and  Pro- 
ceedings shall  be  proved,  and  the  Effect  thereof. 

Section.  2.  The  Citizens  of  each  State  shall  be  entitled  to  all 
Privileges  and  Immunities  of  Citizens  in  the  several  States. 

A  person  charged  in  any  State  with  Treason,  Felony,  or  other 
Crime,  who  shall  flee  from  Justice,  and  be  found  in  another 
State,  shall  on  Demand  of  the  executive  Authority  of  the  State 
from  which  he  fled,  be  delivered  up  to  be  removed  to  the  State 
having  Jurisdiction  of  the  Crime. 

No  Person  held  to  Service  or  Labour  in  one  State,  under  the 
Laws  thereof,  escaping  into  another,  shall,  in  Consequence  of 
any  Law  or  Regulation  therein,  be  discharged  from  such  Serv- 
ice or  Labour,  but  shall  be  delivered  up  on  Claim  of  the  Party 
to  whom  such  Service  or  Labour  may  be  due. 

Section.  3.  New  States  may  be  admitted  by  the  Congress 
into  this  Union;  but  no  new  States  shall  be  formed  or  erected 
within  the  Jurisdiction  of  any  other  State;  nor  any  State  be 
formed  by  the  Junction  of  two  or  more  States,  or  Parts  of 
States,  without  the  Consent  of  the  Legislatures  of  the  States 
concerned  as  well  as  of  the  Congress. 

The  Congress  shall  have  Power  to  dispose  of  and  make  all 
needful  Rules  and  Regulations  respecting  the  Territory  or  other 
Property  belonging  to  the  United  States;  and  nothing  in  this 
Constitution  shall  be  so  construed  as  to  Prejudice  any  Claims 
of  the  United  States,  or  of  any  particular  State. 

Section.  4.  The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  Republican  Form  of  Government,  and 
shall  protect  each  of  them  against  Invasion;  and  on  Applica- 


124    THE  FORMATION  OF  CONSTITUTIONS 

tion  of  the  Legislature,  or  of  the  Executive  (when  the  Legisla- 
ture cannot  be  convened)  against  domestic  Violence. 

Article  V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall 
deem  it  necessary,  shall  propose  Amendments  to  this  Consti- 
tution, or,  on  the  Application  of  the  Legislatures  of  two  thirds 
of  the  several  States,  shall  call  a  Convention  for  proposing 
Amendments,  which,  in  either  Case,  shall  be  valid  to  all  Intents 
and  Purposes,  as  Part  of  this  Constitution,  when  ratified  by 
the  Legislatures  of  three  fourths  of  the  several  States,  or  by 
Conventions  in  three  fourths  thereof,  as  the  one  or  the  other 
Mode  of  Ratification  may  be  proposed  by  the  Congress;  Pro- 
vided that  no  Amendment  which  may  be  made  prior  to  the 
Year  One  thousand  eight  hundred  and  eight  shall  in  any 
Manner  affect  the  first  and  fourth  Clauses  in  the  Ninth  Section 
of  the  first  Article;  and  that  no  State,  without  its  Consent, 
shall  be  deprived  of  its  equal  Suffrage  in  the  Senate. 

Article  VI. 

All  Debts  contracted  and  Engagements  entered  into,  before 
the  Adoption  of  this  Constitution,  shall  be  as  valid  against  the 
United  States  under  this  Constitution,  as  under  the  Confedera- 
tion. 

This  Constitution,  and  the  Laws  of  the  United  States  which 
shall  be  made  in  Pursuance  thereof;  and  all  Treaties  made,  or 
which  shall  be  made,  under  the  Authority  of  the  United  States, 
shall  be  the  supreme  Law  of  the  Land ;  and  the  Judges  in  every 
State  shall  be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

The  Senators  and  Representatives  before  mentioned,  and  the 
Members  of  the  several  State  Legislatures,  and  all  executive 
and  judicial  Officers,  both  of  the  United  States  and  of  the  sev- 
eral States,  shall  be  bound  by  Oath  or  Affirmation,  to  support 
this  Constitution ;  but  no  religious  Test  shall  ever  be  required 
as  a  Qualification  to  any  Office  or  public  Trust  under  the 
United  States. 


CONSTITUTION  OF  UNITED  STATES     125 
Article  VII. 

The  Ratification  of  the  Conventions  of  nine  States,  shall  be 
sufficient  for  the  Establishment  of  this  Constitution  between 
the  States  so  ratifying  the  Same. 
Done  in  Convention  by  the  Unanimous  Consent  of  the 
States  present  the  Seventeenth  Day  of  September  in  the 
Year  of  our  Lord  one  thousand  seven  hundred  and  Eighty 
seven  and  of  the  Independence  of  the  United  States  of 
America  the  Twelfth  In  Witness  whereof  We  have  here- 
unto subscribed  our  Names  .  .  . 


OIAPTER  XIV 

THE    RATIFICATION    OF  THE   CONSTITUTION 

The  finished  Constitution  probably  satisfied  no  one  in  the  Convention. 
Most  of  the  delegates,  to  be  sure,  were  ready  to  sign  the  instrument,  but 
many  did  so  with  misgivings;  some  emphatically  withheld  their  assent. 
At  Franklin's  suggestion,  a  form  of  ratification  by  the  Convention  was 
agreed  upon  which  would  give  a  semblance  of  unanimity:  "Done  in  the 
Convention  by  the  unanimous  consent  of  the  States  present."  It  was 
quite  in  accord  with  the  manner  in  which  the  calling  of  the  Convention 
had  been  forced  upon  Congress,  that  the  Constitution  was  sent  to  Con- 
gress with  definite  prescriptions  as  to  its  ratification  by  the  States.  In 
open  disregard  of  the  Articles  of  Confederation,  of  which  it  could  be 
legally  only  a  revision,  the  Constitution  was  to  become  operative  when 
ratified  by  nine  of  the  thirteen  States.  Congress  was  thus  invited  to  vio- 
late the  fundamental  law  under  which  alone  it  had  legal  existence.  The 
process  of  ratification  in  each  State  was  similar  to  that  followed  in  Georgia, 
except  that  the  conventions  were  variously  constituted,  as  one  or  another 
system  of  apportionment  prevailed.  Madison's  defense  of  the  new  Con- 
stitution as  neither  a  national  nor  a  federal  constitution,  but  a  composi- 
tion of  both,  probably  represents  the  view  which  most  of  the  framers  took 
of  their  handiwork. 

37.  Transmission  of  the  New  Constitution  to  Congress.^ 

Resolved,  That  the  preceding  constitution  be  laid  before  the 
United  States  in  congress  assembled,  and  that  it  is  the  opinion 
of  this  convention,  that  it  should  afterwards  be  submitted  to 
a  convention  of  delegates,  chosen  in  each  state  by  the  people 
thereof,  under  the  recommendation  of  its  legislature,  for  their 
assent  and  ratification;  and  that  each  convention  assenting 
thereto,  and  ratifying  the  same,  should  give  notice  thereof  to 
the  United  States  in  congress  assembled. 

Resolved,  That  it  is  the  opinion  of  this  convention,  that  as 
soon  as  the  conventions  of  nine  States  shall  have  ratified  this 
constitution,  the  United  States  in  congress  assembled  should 
fix  a  day  on  which  electors  should  be  appointed  by  the  states 
which  shall  have  ratified  the  same,  and  a  day  on  which  the 

*  Elliot,  Debates,  v,  541. 


RATIFICATION  OF  CONSTITUTION     127 

electors  should  assemble  to  vote  for  the  president,  and  the  time 
and  place  for  commencing  proceedings  under  this  constitution. 
That  after  such  publication  the  electors  should  be  appointed, 
and  the  senators  and  representatives  elected;  that  the  electors 
should  meet  on  the  day  fixed  for  the  election  of  the  president, 
and  should  transmit  their  votes  certified,  signed,  sealed,  and 
directed,  as  the  constitution  requires,  to  the  secretary  of  the 
United  States  in  congress  assembled;  that  the  senators  and 
representatives  should  convene  at  the  time  and  place  assigned ; 
that  the  senators  should  appoint  a  president  of  the  senate,  for 
the  sole  purpose  of  receiving,  opening,  and  counting  the  votes 
for  president;  and  that  after  he  shall  be  chosen,  the  congress, 
together  with  the  president,  should  without  delay  proceed  to 
execute  this  constitution. 
By  the  unanimous  order  of  the  convention. 

George  Washington,  President. 

38.  Ratification  of  the  Constitution  by  the  State  of  Georgia.^ 
In  Convention,  Wednesday,  January  2,  1788. 
To  all  to  whom  these  presents  shall  come,  Greeting: 

Whereas  the  form  of  a  Constitution  for  the  government  of  the 
United  States  of  America,  was,  on  the  17th  day  of  September, 
1787,  agreed  upon  and  reported  to  Congress  by  the  deputies  of 
the  said  United  States  convened  in  Philadelphia,  which  said 
Constitution  is  written  in  the  words  following,  to  wit:  .  .  . 

And  whereas  the  United  States  in  Congress  assembled  did  on 
the  28th  day  of  September,  1787,  resolve,  unanimously,  "That 
the  said  report,  with  the  resolution  and  letter  accompanying 
the  same,  be  transmitted  to  the  several  legislatures,  in  order  to 
be  submitted  to  a  convention  of  delegates  chosen  in  each  State 
by  the  people  thereof,  in  conformity  to  the  resolves  of  the  Con- 
vention made  and  provided  in  that  case." 

And  whereas  the  legislature  of  the  State  of  Georgia  did,  on 

the  26th  day  of  October,  1787,  in  pursuance  of  the  above  recited 

resolution  of  Congress,  resolve,  that  a  convention  be  elected  on 

the  day  of  the  next  general  election,  and  in  the  same  manner 

1  Elliot,  Debates,  i,  323-24- 


128    THE  FORMATION  OF  CONSTITUTIONS 

that  representatives  are  elected;  and  that  the  said  Convention 
consist  of  not  more  than  three  members  from  each  county;  and 
that  the  said  convention  should  meet  at  Augusta,  on  the  4th 
Tuesday  in  December  then  next,  and,  as  soon  thereafter  as 
convenient,  proceed  to  consider  the  said  report  and  resolu- 
tions, and  to  adopt  or  reject  any  part  or  the  whole  thereof;  — 

Now  know  ye,  that  we,  the  delegates  of  the  people  of  the 
State  of  Georgia,  in  convention  met,  pursuant  to  the  resolu- 
tions of  the  legislature  aforesaid,  having  taken  into  our  serious 
consideration  the  said  Constitution,  have  assented  to,  ratified, 
and  adopted,  and  by  these  presents  do,  in  virtue  of  the  powers 
and  authority  to  us  given  by  the  people  of  the  said  State,  for 
that  purpose,  for  and  in  behalf  of  ourselves  and  our  constitu- 
ents, fully  and  entirely  assent  to,  ratify,  and  adopt,  the  said 
Constitution. 

Done  in  Convention,  at  Augusta,  in  the  said  State,  on  the 
2d  day  of  January,  in  the  year  of  our  Lord  1788,  and  of  the 
independence  of  the  United  States  the  12th. 

In  witness  whereof,  we  have  hereunto  subscribed  our  names. 

John  Wereat,  President, 
and  delegate  for  the  county  of  Richmond. 

39.  The  Constitution  —  National  or  Federal?^ 

The  first  question  that  off"ers  itself  is,  whether  the  general 
form  and  aspect  of  the  Government  be  strictly  republican.  It 
is  evident  that  no  other  form  would  be  reconcilable  with  the 
genius  of  the  People  of  America;  with  the  fundamental  prin- 
ciples of  the  Revolution;  or  with  that  honorable  determination 
which  animates  every  votary  of  freedom,  to  rest  all  our  politi- 
cal experiments  on  the  capacity  of  mankind  for  self-govern- 
ment. If  the  plan  of  the  Convention,  therefore,  be  found  to 
depart  from  the  republican  character,  its  advocates  must 
abandon  it  as  no  longer  defensible. 

What  then  are  the  distinctive  characters  of  the  republican 
form?  Were  an  answer  to  this  question  to  be  sought,  not  by 
recurring  to  principles,  but  in  the  application  of  the  term  by 
*  Federalist,  No.  38  (Ford  ed.),  245-52  passim. 


RATIFICATION  OF  CONSTITUTION     129 

political  writers,  to  the  Constitutions  of  different  States,  no 
satisfactory  one  would  ever  be  found.  Holland,  in  which  no 
particle  of  the  supreme  authority  is  derived  from  the  People, 
has  passed  almost  universally  under  the  denomination  of  a 
repubHc.  The  same  title  has  been  bestowed  on  Venice,  where 
absolute  power  over  the  great  body  of  the  People  is  exercised, 
in  the  most  absolute  manner,  by  a  small  body  of  hereditary 
nobles.  Poland,  which  is  a  mixture  of  aristocracy  and  of  mon- 
archy in  their  worst  forms,  has  been  dignified  with  the  same 
appellation.  The  Government  of  England,  which  has  one 
repubhcan  branch  only,  combined  with  an  hereditary  aristo- 
cracy and  monarchy,  has,  with  equal  impropriety,  been  fre- 
quently placed  on  the  list  of  republics.  These  examples,  which 
are  nearly  as  dissimilar  to  each  other  as  to  a  genuine  republic, 
show  the  extreme  inaccuracy  with  which  the  term  has  been 
used  in  political  disquisitions. 

If  we  resort,  for  a  criterion,  to  the  different  principles  on 
which  different  forms  of  Government  are  estabUshed,  we  may 
define  a  republic  to  be,  or  at  least  may  bestow  that  name  on,  a 
Government  which  derives  all  its  powers  directly  or  indirectly 
from  the  great  body  of  the  People,  and  is  administered  by  per- 
sons holding  their  offices  during  pleasure,  for  a  limited  period, 
or  during  good  behavior.  It  is  essential  to  such  a  Government, 
that  it  be  derived  from  the  great  body  of  the  society,  not  from 
an  inconsiderable  proportion,  or  a  favored  class  of  it;  otherwise 
a  handful  of  tyrannical  nobles,  exercising  their  oppressions  by 
a  delegation  of  their  powers,  might  aspire  to  the  rank  of  repub- 
licans, and  claim  for  their  Government  the  honorable  title  of 
republic.  It  is  sufficient  for  such  a  Government,  that  the  per- 
sons administering  it  be  appointed,  either  directly  or  indi- 
rectly, by  the  People;  and  that  they  hold  their  appointments 
by  either  of  the  tenures  just  specified;  otherwise  every  Govern- 
ment in  the  United  States,  as  well  as  every  other  popular 
Government  that  has  been  or  can  be  well  organized  or  well 
executed,  would  be  degraded  from  the  republican  character. 
According  to  the  Constitution  of  every  State  in  the  Union, 
some  or  other  of  the  officers  of  Government  are  appointed 


I30    THE  FORMATION  OF  CONSTITUTIONS 

indirectly  only  by  the  People.  According  to  most  of  them,  the 
chief  magistrate  himself  is  so  appointed.  And  according  to 
one,  this  mode  of  appointment  is  extended  to  one  of  the  coordi- 
nate branches  of  the  Legislature.  According  to  all  the  Consti- 
tutions, also,  the  tenure  of  the  highest  ofl&ces  is  extended  to  a 
definite  period,  and  in  many  instances,  both  within  the  Legis- 
lative and  Executive  departments,  to  a  period  of  years.  Ac- 
cording to  the  provisions  of  most  of  the  Constitutions,  again, 
as  well  as  according  to  the  most  respectable  and  received  opin- 
ions on  the  subject,  the  members  of  the  Judiciary  department 
are  to  retain  their  offices  by  the  firm  tenure  of  good  behav- 
ior. .  .  . 

Could  any  further  proof  be  required  of  the  republican  com- 
plexion of  this  system,  the  most  decisive  one  might  be  found  in 
its  absolute  prohibition  of  titles  of  nobility,  both  under  the 
Federal  and  the  State  Governments;  and  in  its  express  guar- 
anty of  the  republican  form  to  each  of  the  latter. 

"But  it  was  not  sufficient,"  say  the  adversaries  of  the  pro- 
posed Constitution,  "for  the  Convention  to  adhere  to  the 
republican  form.  They  ought,  with  equal  care,  to  have  pre- 
served the  Federal  form,  which  regards  the  Union  as  a  Confed- 
eracy of  sovereign  States;  instead  of  which,  they  have  framed  a 
National  Government,  which  regards  the  Union  as  a  consolid- 
ation of  the  States."  And  it  is  asked  by  what  authority  this 
bold  and  radical  innovation  was  undertaken?  The  handle 
which  has  been  made  of  this  objection  requires,  tiiat  it  should 
be  examined  with  some  precision. 

Without  inquiring  into  the  accuracy  of  the  distinction  on 
which  the  objection  is  founded,  it  will  be  necessary  to  a  just 
estimate  of  its  force,  First,  to  ascertain  the  real  character  of 
the  Government  in  question;  Secondly,  to  inquire  how  far  the 
Convention  were  authorized  to  propose  such  a  Government; 
and  Thirdly,  how  far  the  duty  they  owed  to  their  country 
could  supply  any  defect  of  regular  authority. 

First.  In  order  to  ascertain  the  real  character  of  the  Govern- 
ment, it  may  be  considered  in  relation  to  the  foundation  on 
which  it  is  to  be  established;  to  the  sources  from  which  its 


RATIFICATION  OF  CONSTITUTION     131 

ordinary  powers  are  to  be  drawn;  to  the  operation  of  these 
powers;  to  the  extent  of  them;  and  to  the  authority  by  which 
future  changes  in  the  Government  are  to  be  introduced. 

On  examining  the  first  relation,  it  appears,  on  one  hand,  that 
the  Constitution  is  to  be  founded  on  the  assent  and  ratifica- 
tion of  the  People  of  America,  given  by  deputies  elected  for  the 
special  purpose ;  but  on  the  other,  that  this  assent  and  ratifica- 
tion is  to  be  given  by  the  People,  not  as  individuals  composing 
one  entire  Nation,  but  as  composing  the  distinct  and  inde- 
pendent States  to  which  they  respectively  belong.  It  is  to  be 
the  assent  and  ratification  of  the  several  States,  derived  from 
the  supreme  authority  in  each  State,  —  the  authority  of  the 
People  themselves.  The  act,  therefore,  establishing  the  Consti- 
tution, will  not  be  a  National,  but  a  Federal  act. 

That  it  will  be  a  Federal,  and  not  a  National  act,  as  these 
terms  are  understood  by  the  objectors,  the  act  of  the  People,  as 
forming  so  many  independent  States,  not  as  forming  one  aggre- 
gate Nation,  is  obvious  from  this  single  consideration,  that  it  is 
to  result  neither  from  the  decision  of  a  majority  of  the  People 
of  the  Union,  nor  from  that  of  a  majority  of  the  States.  It 
must  result  from  the  unanimous  assent  of  the  several  States 
that  are  parties  to  it,  differing  no  otherwise  from  their  ordinary 
assent  than  in  its  being  expressed,  not  by  the  Legislative  author- 
ity, but  by  that  of  the  People  themselves.  Were  the  People 
regarded  in  this  transaction  as  forming  one  Nation,  the  will  of 
the  majority  of  the  whole  People  of  the  United  States  would 
bind  the  minority,  in  the  same  manner  as  the  majority  in  each 
State  must  bind  the  minority;  and  the  will  of  the  majority 
must  be  determined  either  by  a  comparison  of  the  individual 
votes,  or  by  considering  the  will  of  the  majority  of  the  States 
as  evidence  of  the  will  of  a  majority  of  the  People  of  the  United 
States.  Neither  of  these  rules  has  been  adopted.  Each  State, 
in  ratifying  the  Constitution,  is  considered  as  a  sovereign  body, 
independent  of  all  others,  and  only  to  be  bound  by  its  own  vol- 
untary act.  In  this  relation,  then,  the  new  Constitution  will, 
if  established,  be  a  Federal,  and  not  a  National  Constitution. 

The  next  relation  is,  to  the  sources  from  which  the  ordinary 


132    THE  FORMATION  OF  CONSTITUTIONS 

powers  of  Government  are  to  be  derived.  The  House  of  Repre- 
sentatives will  derive  its  powers  from  the  People  of  America; 
and  the  People  will  be  represented  in  the  same  proportion,  and 
on  the  same  principle,  as  they  are  in  the  Legislature  of  a  partic- 
ular State.  So  far  the  Government  is  National,  not  Federal. 
The  Senate,  on  the  other  hand,  will  derive  its  powers  from  the 
States,  as  political  and  coequal  societies;  and  these  will  be 
represented  on  the  principle  of  equality  in  the  Senate,  as  they 
now  are  in  the  existing  Congress.  So  far  the  Government  is 
Federal,  not  National.  The  Executive  power  will  be  derived 
from  a  very  compound  source.  The  immediate  election  of  the 
President  is  to  be  made  by  the  States  in  their  political  char- 
acters. The  votes  allotted  to  them  are  in  a  compound  ratio, 
which  considers  them  partly  as  distinct  and  coequal  societies, 
partly  as  unequal  members  of  the  same  society.  The  eventual 
election,  again,  is  to  be  made  by  that  branch  of  the  Legislature 
which  consists  of  the  National  representatives;  but  in  this 
particular  act,  they  are  to  be  thrown  into  the  form  of  individual 
delegations,  from  so  many  distinct  and  coequal  bodies  politic. 
From  this  aspect  of  the  Government,  it  appears  to  be  of  a 
mixed  character,  presenting  at  least  as  many  Federal  as 
National  features. 

The  difference  between  a  Federal  and  National  Government, 
as  it  relates  to  the  operation  oj  the  Governme?it,  is  supposed  to 
consist  in  this,  that  in  the  former,  the  powers  operate  on  the 
political  bodies  composing  the  Confederacy,  in  their  political 
capacities;  in  the  latter,  on  the  individual  citizens  composing 
the  Nation,  in  their  individual  capacities.  On  trying  the  Con- 
stitution by  this  criterion,  it  falls  under  the  National,  not  the 
Federal  character;  though  perhaps  not  so  completely  as  has 
been  understood.  In  several  cases,  and  particularly  in  the  trial 
of  controversies  to  which  States  may  be  parties,  they  must  be 
viewed  and  proceeded  against  in  their  collective  and  political 
capacities  only.  So  far  the  National  countenance  of  the  Govern- 
ment on  this  side  seems  to  be  disfigured  by  a  few  Federal 
features.  But  this  blemish  is  perhaps  unavoidable  in  any  plan; 
and  the  operation  of  the  Government  on  the  People,  in  their 


RATIFICATION  OF  CONSTITUTION     133 

individual  capacities,  in  its  ordinary  and  most  essential  pro- 
ceedings, may,  on  the  whole,  designate  it,  in  this  relation,  a 
National  Government. 

But  if  the  Government  be  National  with  regard  to  the 
operation  of  its  powers,  it  changes  its  aspect  again  when  we 
contemplate  it  in  relation  to  the  extent  of  its  power.  The  idea 
of  a  National  Government  involves  in  it,  not  only  an  authority 
over  the  individual  citizens,  but  an  indefinite  supremacy  over 
all  persons  and  things,  so  far  as  they  are  objects  of  lawful 
Government.  Among  a  People  consolidated  into  one  Nation, 
this  supremacy  is  completely  vested  in  the  National  Legislature. 
Among  communities  united  for  particular  purposes,  it  is  vested 
partly  in  the  general,  and  partly  in  the  municipal  Legislatures. 
In  the  former  case,  all  local  authorities  are  subordinate  to  the 
supreme;  and  may  be  controlled,  directed  or  abolished  b}'  it 
at  pleasure.  In  the  latter,  the  local  or  municipal  authorities 
form  distinct  and  independent  portions  of  the  supremacy,  no 
more  subject,  within  their  respective  spheres,  to  the  general 
authority,  than  the  general  authority  is  subject  to  them,  within 
its  own  sphere.  In  this  relation,  then,  the  proposed  Govern- 
ment cannot  be  deemed  a  National  one;  since  its  jurisdiction 
extends  to  certain  enumerated  objects  only,  and  leaves  to  the 
several  States  a  residuary  and  inviolable  sovereignty  over  all 
other  objects.  It  is  true,  that  in  controversies  relating  to  the 
boundary  between  the  two  jurisdictions,  the  tribunal  which  is 
ultimately  to  decide,  is  to  be  established  under  the  General 
Government.  But  this  does  not  change  the  principle  of  the 
case.  The  decision  is  to  be  impartially  made,  according  to  the 
rules  of  the  Constitution ;  and  all  the  usual  and  most  effectual 
precautions  are  taken  to  secure  this  impartiality.  Some  such 
tribunal  is  clearly  essential  to  prevent  an  appeal  to  the  sword, 
and  a  dissolution  of  the  compact ;  and  that  it  ought  to  be  estab- 
lished under  the  General,  rather  than  under  the  local  Govern- 
ments, or,  to  speak  more  properly,  that  it  could  be  safely 
established  under  the  first  alone,  is  a  position  not  likely  to  be 
combated. 

If  we  try  the  Constitution  by  its  last  relation,  to  the  author- 


134    THE  FORMATION  OF  CONSTITUTIONS 

ity  by  which  amendments  are  to  be  made,  we  find  it  neither 
wholly  National,  nor  wholly  Federal.  Were  it  wholly  National, 
the  supreme  and  ultimate  authority  would  reside  in  the 
majority  of  the  People  of  the  Union ;  and  this  authority  would 
be  competent  at  all  times,  Uke  that  of  a  majority  of  every 
National  society,  to  alter  or  abolish  its  established  Govern- 
ment. Were  it  wholly  Federal,  on  the  other  hand,  the  concur- 
rence of  each  State  in  the  Union  would  be  essential  to  every 
alteration  that  would  be  binding  on  all.  The  mode  provided 
by  the  Plan  of  the  Convention  is  not  founded  on  either  of  these 
principles.  In  requiring  more  than  a  majority,  and  particu- 
larly, in  computing  the  proportion  by  States,  not  by  citizens,  it 
departs  from  the  National,  and  advances  towards  the  Federal 
character:  in  rendering  the  concurrence  of  less  than  the  whole 
number  of  States  sufficient,  it  loses  again  the  Federal,  and 
partakes  of  the  National  character. 

The  proposed  Constitution,  therefore,  is,  in  strictness, 
neither  a  National  nor  a  Federal  Constitution,  but  a  composi- 
tion of  both.  In  its  foundation  it  is  Federal,  not  National:  in 
the  sources  from  which  the  ordinary  powers  of  the  Govern- 
ment are  drawn,  it  is  partly  Federal,  and  partly  National:  in 
the  operation  of  these  powers^  it  is  National,  not  Federal:  in 
the  extent  of  them,  again,  it  is  Federal,  not  National:  and, 
finally,  in  the  authoritative  mode  of  introducing  amendments, 
it  is  neither  wholly  Federal  nor  wholly  Nadonal. 


CHAPTER  XV 

THE    FIRST  AMENDMENTS   TO   THE    CONSTITUTION 

Amendments  to  nearly  every  article  of  the  new  Constitution  were  pro- 
posed in  the  ratifying  conventions  and  in  the  press;  but  the  objection 
most  commonly  urged  was  that  the  Constitution  contained  no  declara- 
tion of  rights.  To  remove  this  objection,  Madison  proposed  in  the  first 
session  of  Congress  the  addition  of  articles  which,  without  altering  the 
framework  of  the  instrument,  should  constitute  a  bill  of  rights.  Of  the 
twelve  amendments  proposed  by  the  select  committee  to  which  Mad- 
ison's propositions  were  referred,  ten  were  ratified  and  became  a  part  of 
the  Constitution.  The  Eleventh  Amendment  was  adopted  as  a  direct  re- 
sult of  the  suit  brought  against  the  "sovereign  State  of  Georgia"  in  i7y3. 

40.  A  Proposal  to  Amend  the  New  Constitution.^ 

It  cannot  be  a  secret  to  the  gentlemen  in  this  House,  that, 
notwithstanding  the  ratification  of  this  system  of  Government 
by  eleven  of  the  thirteen  United  States,  in  some  cases  unani- 
mously, in  others  by  large  majorities;  yet  still  there  is  a  great 
number  of  our  constituents  who  are  dissatisfied  with  it ;  among 
whom  are  many  respectable  for  their  talents  and  patriotism, 
and  respectable  for  the  jealousy  they  have  for  their  liberty, 
which,  though  mistaken  in  its  object,  is  laudable  in  its  motive. 
There  is  a  great  body  of  the  people  falling  under  this  descrip- 
tion, who  at  present  feel  much  inclined  to  join  their  support 
to  the  cause  of  Federalism,  if  they  were  satisfied  on  this  one 
point.  We  ought  not  to  disregard  their  inclination,  but,  on 
principles  of  amity  and  moderation,  conform  to  their  wishes, 
and  expressly  declare  the  great  rights  of  mankind  secured 
under  this  constitution.  The  acquiescence  which  our  fellow- 
citizens  show  under  the  Government,  calls  upon  us  for  a  like 
return  of  moderation.  But  perhaps  there  is  a  stronger  motive 
than  this  for  our  going  into  a  consideration  of  the  subject.  It 
is  to  provide  those  securities  for  liberty  which  are  required  by 

*  Speech  of  James  Madison  in  the  House  of  Representatives,  June  8, 
1789.  Annals  of  Congress,  i  Cong.,  i  Sess.,  449-57  passim. 


136    THE  FORMATION  OF  CONSTITUTIONS 

a  part  of  the  community;  I  allude  in  a  particular  manner  to 
those  two  States  that  have  not  thought  fit  to  throw  themselves 
into  the  bosom  of  the  Confederacy.  It  is  a  desirable  thing,  on 
our  part  as  well  as  theirs,  that  a  reunion  should  take  place  as 
soon  as  possible.  I  have  no  doubt,  if  we  proceed  to  take  those 
steps  which  would  be  prudent  and  requisite  at  this  juncture, 
that  in  a  short  time  we  should  see  that  disposition  prevailing 
in  those  States  which  have  not  come  in,  that  we  have  seen 
prevailing  in  those  States  which  have  embraced  the  constitu- 
tion. 

But  I  will  candidly  acknowledge,  that,  over  and  above  all 
these  considerations,  I  do  conceive  that  the  constitution  may 
be  amended;  that  is  to  say,  if  all  power  is  subject  to  abuse,  that 
then  it  is  possible  the  abuse  of  the  powers  of  the  General 
Government  may  be  guarded  against  in  a  more  secure  manner 
than  is  now  done,  while  no  one  advantage  arising  from  the 
exercise  of  that  power  shall  be  damaged  or  endangered  by  it. 
We  have  in  this  way  something  to  gain,  and,  if  we  proceed  with 
caution,  nothing  to  lose.  And  in  this  case  it  is  necessary  to 
proceed  with  caution;  for  while  we  feel  all  these  inducements 
to  go  into  a  revisal  of  the  constitution,  we  must  feel  for  the 
constitution  itself,  and  make  that  revisal  a  moderate  one.  I 
should  be  unwilling  to  see  a  door  opened  for  a  reconsideration 
of  the  whole  structure  of  the  Government  —  for  a  reconsidera- 
tion of  the  principles  and  the  substance  of  the  powers  given; 
because  I  doubt,  if  such  a  door  were  opened,  we  should  be  very 
likely  to  stop  at  that  point  which  would  be  safe  to  the  Govern- 
ment itself.  But  I  do  wish  to  see  a  door  opened  to  consider,  so 
far  as  to  incorporate  those  provisions  for  the  security  of  rights, 
against  which  I  believe  no  serious  objection  has  been  made  by 
any  class  of  our  constituents:  such  as  would  be  likely  to  meet 
with  the  concurrence  of  two-thirds  of  both  Houses,  and  the 
approbation  of  three-fourths  of  the  State  Legislatures.  I  will 
not  propose  a  single  alteration  which  I  do  not  wish  to  see  take 
place,  as  intrinsically  proper  in  itself,  or  proper  because  it  is 
wished  for  by  a  respectable  number  of  my  fellow-citizens;  and 
therefore  I  shall  not  propose  a  single  alteration  but  is  likely  to 


FIRST  AMENDMENTS  137 

meet  the  concurrence  required  by  the  constitution.  There 
have  been  objections  of  various  kinds  made  against  the  consti- 
tution. Some  were  levelled  against  its  structure  because  the 
President  was  without  a  council;  because  the  Senate,  which  is 
a  legislative  body,  had  judicial  powers  in  trials  on  impeach- 
ments; and  because  the  powers  of  that  body  were  compounded 
in  other  respects,  in  a  manner  that  did  not  correspond  with  a 
particular  theory;  because  it  grants  more  power  than  is  sup- 
posed to  be  necessary  for  every  good  purpose,  and  controls  the 
ordinary  powers  of  the  State  Governments.  I  know  some 
respectable  characters  who  opposed  this  Government  on  these 
grounds;  but  I  believe  that  the  great  mass  of  the  people  who 
opposed  it,  disliked  it  because  it  did  not  contain  effectual  pro- 
visions against  encroachments  on  particular  rights,  and  those 
safeguards  which  they  have  been  long  accustomed  to  have 
interposed  between  them  and  the  magistrate  who  exercises 
the  sovereign  power;  nor  ought  we  to  consider  them  safe,  while 
a  great  number  of  our  fellow-citizens  think  these  securities 
necessary.  .  .  . 

It  has  been  said,  that  it  is  unnecessary  to  load  the  constitu- 
tion with  this  provision,  because  it  was  not  found  effectual  in 
the  constitution  of  the  particular  States.  It  is  true,  there  are  a 
few  particular  States  in  which  some  of  the  most  valuable 
articles  have  not,  at  one  time  or  other,  been  violated;  but  it 
does  not  follow  but  they  may  have,  to  a  certain  degree,  a  salut- 
ary effect  against  the  abuse  of  power.  If  they  are  incorporated 
into  the  constitution,  independent  tribunals  of  justice  will  con- 
sider themselves  in  a  peculiar  manner  the  guardians  of  those 
rights;  they  will  be  an  impenetrable  bulwark  against  every 
assumption  of  power  in  the  legislative  or  executive;  they  will 
be  naturally  led  to  resist  every  encroachment  upon  rights 
expressly  stipulated  for  in  the  constitution  by  the  declaration 
of  rights.  Besides  this  security,  there  is  a  great  probability 
that  such  a  declaration  in  the  federal  system  would  be  enforced; 
because  the  State  Legislatures  will  jealously  and  closely  watch 
the  operations  of  this  Government,  and  be  able  to  resist  with 
more  effect  every  assumption  of  power,  than  any  other  power 


138    THE  FORMATION  OF  CONSTITUTIONS 

on  earth  can  do;  and  the  greatest  opponents  to  a  Federal 
Government  admit  the  State  Legislatures  to  be  sure  guardians 
of  the  people's  liberty.  I  conclude,  from  this  view  of  the  sub- 
ject, that  it  will  be  proper  in  itself,  and  highly  politic,  for  the 
tranquilhty  of  the  pubHc  mind,  and  the  stabiHty  of  the  Govern- 
ment, that  we  should  offer  something,  in  the  form  I  have  pro- 
posed, to  be  incorporated  in  the  system  of  Government  as  a 
declaration  of  the  rights  of  the  people. 

41 .  Resolutionof  Congress  for  the  Amendment  of  the  Constitution.^ 

The  conventions  of  a  number  of  the  states  having,  at  the 
time  of  their  adopting  the  Constitution,  expressed  a  desire,  in 
order  to  prevent  misconstruction  or  abuse  of  its  powers,  that 
further  declaratory  and  restrictive  clauses  should  be  added; 
and  as  extending  the  ground  of  pubHc  confidence  in  the  govern- 
ment will  best  insure  the  beneficent  ends  of  its  institution ;  — 

Resolved  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America,  in  Congress  assembled,  two  thirds  of 
both  houses  concurring,  that  the  following  articles  be  proposed 
to  the  legislatures  of  the  several  states,  as  amendments  to  the 
Constitution  of  the  United  States,  all  or  any  of  which  articles, 
when  ratified  by  three  fourths  of  the  said  legislatures,  to  be 
valid,  to  all  intents  and  purposes,  as  part  of  the  said  Constitu- 
tion. ...  [Of  the  twelve  proposed,  ten  were  adopted  and 
became  a  part  of  the  Constitution  as  follows:] 

42.  The  First  Ten  Amendments.^ 

Article  I. 

Congress  shall  make  no  law  respecting  an  establishment  of 

religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging 

the  freedom  of  speech  or  of  the  press;  or  the  right  of  the  people 

peaceably  to  assemble,  and  to  petition  the  government  for  a 

I    redress  of  grievances. 

I 

i         1  Elliot,  Debates,  I,  338. 

I         2  These  amendments  went  into  effect  November  3,  1791.    Revised 
Statutes  (1878),  28-30. 


FIRST  AMENDMENTS  139 

Article  II. 

A  well-regulated  militia  being  necessary  to  the  security  of 
a  free  State,  the  right  of  the  people  to  keep  and  bear  arms  shall 
not  be  infringed. 

Article  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house 
without  the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 

Article  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  warrants  shall  issue  but  upon 
probable  cause,  supported  by  oath  or  affirmation,  and  particu- 
larly describing  the  place  to  be  searched,  and  the  person  or 
things  to  be  seized. 

Article  V. 

No  person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia,  when  in  actual  service  in  time  of  war  or  public 
danger;  nor  shall  any  person  be  subject  for  the  same  ofifense  to 
be  twice  put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself,  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process  of 
law;  nor  shall  private  property  be  taken  for  public  use  without 
just  compensation. 

Article  VI. 

In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by  law, 
and  to  be  informed  of  the  nature  and  cause  of  the  accusation; 
to  be  confronted  with  the  witnesses  against  him;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  and  to  have 
the  assistance  of  counsel  for  his  defense. 


140    THE  FORMATION  OF  CONSTITUTIONS 
Article  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  pre- 
served, and  no  fact  tried  by  a  jury  shall  be  otherwise  re- 
examined in  any  court  of  the  United  States,  than  according  to 
the  rules  of  the  common  law. 

Article  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted. 

Article  IX. 
The  enumeration  in  the  Constitution  of  certain  rights  shall 
not  be  construed  to  deny  or  disparage  others  retained  by  the 
people. 

Article  X. 

The  powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively  or  to  the  people. 

43.  Chisholm,  Executor,  v.  Georgia.^ 

Mr.  Chief  Justice  Jay  delivered  the  opinion  of  the  Court: 

The  question  we  are  now  to  decide  has  been  accurately 
stated  namely,  is  a  State  suable  by  individual  citizens  of  an- 
other State? 

It  is  said  that  Georgia  refuses  to  appear  and  answer  to  the 
plaintiff  in  this  action,  because  she  is  a  sovereign  State,  and 
therefore  not  liable  to  such  actions.  In  order  to  ascertain  the 
merits  of  this  objection,  let  us  inquire:  —  ist.  In  what  sense 
Georgia  is  a  sovereign  State.  2nd.  Whether  suability  is  incom- 
patible with  such  sovereignty.  3rd.  Whether  the  Constitution, 
to  which  Georgia  is  a  party,  authorizes  such  an  action  against  her. 
I  St.  .  .  .  the  sovereignty  of  the  nation  is  in  the  people  of 
the  nation,  and  the  residuary  sovereignty  of  each  State  in  the 
people  of  each  State.  .  .  . 

*  Supreme  Court  of  the  United  States,  1793.  2  Dallas,  419. 


FIRST  AMENDMENTS  141 

2nd.  The  second  object  of  inquiry  now  presents  itself,  namely, 
whether  suability  is  compatible  with  State  sovereignty.  .  .  . 

If  there  be  any  such  incompatibility  as  is  pretended,  whence 
does  it  arise?  In  what  does  it  consist?  There  is  at  least  one 
strong  undeniable  fact  against  this  incompatibility,  and  that 
is  this:  Any  one  State  in  the  Union  may  sue  all  the  people  of 
another  State.  It  is  plain  then  that  a  State  may  be  sued,  and 
hence  it  plainly  follows  that  suability  and  State  sovereignty 
are  not  incompatible.  .  .  .  But  why  should  it  be  more  incom- 
patible that  all  the  people  of  a  State  should  be  sued  by  one  citi- 
zen, than  by  one  hundred  thousand,  I  cannot  perceive,  the 
process  in  both  cases  being  alike,  and  the  consequences  of  a  judg- 
ment alike.  Nor  can  I  observe  any  greater  inconveniences  in  the 
one  case  than  in  the  other,  except  what  may  arise  from  the  feel- 
ings of  those  who  may  regard  a  lesser  number  in  an  inferior  light. 
But  if  any  reliance  be  made  on  this  inferiority,  as  an  objection, 
at  least  one-half  of  its  force  is  done  away  by  this  fact,  namely, 
that  it  is  conceded  that  a  State  may  appear  in  this  court  as 
plaintiff  against  a  single  citizen  as  defendant;  and  the  truth  is 
that  the  State  of  Georgia  is  at  this  moment  prosecuting  an  ac- 
tion in  this  court  against  two  citizens  of  South  Carolina.  .  .  . 

3rd.  Let  us  now  proceed  to  inquire  whether  Georgia  has  not, 
by  being  a  party  to  the  national  compact,  consented  to  be 
suable  by  individual  citizens  of  another  State.  .  .  . 

The  question  now  before  us  renders  it  necessary  to  pay 
particular  attention  to  that  part  of  the  second  section  which 
extends  the  judicial  power  "to  controversies  between  a  State 
and  citizens  of  another  State."  It  is  contended  that  this  ought 
to  be  construed  to  reach  none  of  these  controversies,  excepting 
those  in  which  a  State  may  be  plaintiff.  The  ordinary  rules  for 
construction  will  easily  decide  whether  those  words  are  to  be 
understood  in  that  limited  sense. 

This  extension  of  power  is  remedial,  because  it  is  to  settle 
controversies.  It  is,  therefore,  to  be  construed  liberally.  It  is 
politic,  wise,  and  good,  that  not  only  the  controversies  in  which 
a  State  is  plaintiff,  but  also  those  in  which  a  State  is  defendant, 
should  be  settled;  both  cases,  therefore,  are  within  the  reason 


142    THE  FORMATION  OF  CONSTITUTIONS 

of  the  remedy;  and  ought  to  be  so  adjudged,  unless  the  obvious, 
plain,  and  literal  sense  of  the  words  forbid  it.  If  we  attend  to 
the  words,  we  find  them  to  be  express,  positive,  free  from  ambi- 
guity, and  without  room  for  such  impHed  expressions:  "The 
judicial  power  of  the  United  States  shall  extend  to  contro- 
versies between  a  State  and  citizens  of  another  State."  If  the 
constitution  really  meant  to  extend  these  powers  only  to  those 
controversies  in  which  a  State  might  be  plaintiff,  to  the  ex- 
clusion of  those  in  which  citizens  had  demands  against  a  State, 
it  is  inconceivable  that  it  should  have  attempted  to  convey 
that  meaning  in  words  not  only  so  incompetent,  but  also 
repugnant  to  it;  if  it  meant  to  exclude  a  certain  class  of  these 
controversies,  why  were  they  not  expressly  excepted;  on  the 
contrary,  not  even  an  intimation  of  such  intention  appears  in 
any  part  of  the  constitution.  It  cannot  be  pretended  that 
where  citizens  urge  and  insist  upon  demands  against  a  State, 
which  the  State  refuses  to  admit  and  comply  with,  that  there 
is  no  controversy  between  them.  If  it  is  a  controversy  between 
them,  then  it  clearly  falls  not  only  within  the  spirit,  but  the 
very  words  of  the  constitution.  What  is  it  to  the  cause  of  jus- 
tice, and  how  can  it  affect  the  definition  of  the  word  controversy, 
whether  the  demands  which  cause  the  dispute  are  made  by  a 
State  against  citizens  of  another  State,  or  by  the  latter  against 
the  former?  When  power  is  thus  extended  to  a  controversy, 
it  necessarily,  as  to  all  judicial  purposes,  is  also  extended  to 
those  between  whom  it  subsists.  .  .  . 

For  the  reasons  before  given,  I  am  clearly  of  opinion  that 
a  State  is  suable  by  citizens  of  another  State. 

44.  The  Eleventh  Amendment.^ 

Article  XI. 

The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens  of 
another  State,  or  by  citizens  or  subjects  of  any  foreign  State. 

*  This  amendment  went  into  effect  January  8,  1798.  Revised  Statutes 

(1878).  30. 


CHAPTER  XVI 

THE    GOVERNMENT   OF    FEDERAL   TERRITORIES 

The  Ordinance  of  1787,  passed  originally  by  the  Congress  of  the  Con- 
federacy and  reenacted  by  the  new  Congress,  must  be  reckoned  among 
the  great  acts  of  constructive  statesmanship  of  this  period.  It  is  important 
not  only  because  it  projected  a  form  of  territorial  government  which 
served  as  a  model  for  succeeding  territorial  acts,  but  also  because  it  re- 
newed in  definite  form  the  earlier  pledge  that  States  carved  out  of  this 
territory  should  be  admitted  to  membership  in  the  Union  on  an  equal 
footing  with  the  original  States.  The  assurance  was  made  doubly  sure 
that  Congress  would  not  hold  the  Northwest  as  a  dependencj^  but  would 
prepare  it  for  eventual  statehood.  The  foundations  were  thus  laid  for  the 
American  process  of  continental  colonization. 

45.  The  Ordinance  of  I'/Sy  for  the  Northwest  Territory. ^ 

Section  i  .  Be  it  ordained  by  the  United  States  in  Congress 
assembled,  That  the  said  territory,  for  the  purposes  of  tem- 
porary government,  be  one  district,  subject,  however,  to  be 
divided  into  two  districts,  as  future  circumstances  may,  in  the 
opinion  of  Congress,  make  it  expedient. 

Sec.  2.  Be  it  ordained  by  the  authority  aforesaid,  That  the 
estates  both  of  resident  and  non-resident  proprietors  in  the 
said  territory,  dying  intestate,  shall  descend  to,  and  be  distrib- 
uted among,  their  children  and  the  descendants  of  a  deceased 
child  in  equal  parts,  the  descendants  of  a  deceased  child  or 
grandchild  to  take  the  share  of  their  deceased  parent  in  equal 
parts  among  them:  and  where  there  shall  be  no  children  or 
descendants,  then  in  equal  parts  to  the  next  of  kin,  in  equal 
degree;  and  among  collaterals,  the  children  of  a  deceased 
brother  or  sister  of  the  intestate  shall  have,  in  equal  parts 
among  them,  their  deceased  parent's  share;  and  there  shall, 
in  no  case,  be  a  distinction  between  kindred  of  the  whole  and 
half  blood;  saving  in  all  cases  to  the  widow  of  the  intestate,  her 
third  part  of  the  real  estate  for  life,  and  one-third  part  of  the 
^  Revised  Statutes  of  the  United  States  (1878),  13-16. 


144    THE  FORMATION  OF  CONSTITUTIONS 

personal  estate;  and  this  law  relative  to  descents  and  dower, 
shall  remain  in  full  force  until  altered  by  the  legislature  of  the 
district.  And  until  the  governor  and  judges  shall  adopt  laws 
as  hereinafter  mentioned,  estates  in  the  said  territory  may  be 
devised  or  bequeathed  by  wills  in  writing,  signed  and  sealed 
by  him  or  her  in  whom  the  estate  may  be,  (being  of  full  age,) 
and  attested  by  three  witnesses;  and  real  estates  may  be  con- 
veyed by  lease  and  release,  or  bargain  and  sale,  signed,  sealed, 
and  delivered  by  the  person,  being  of  full  age,  in  whom  the 
estate  may  be,  and  attested  by  two  witnesses,  provided  such 
wills  be  duly  proved,  and  such  conveyances  be  acknowledged, 
or  the  execution  thereof  duly  proved,  and  be  recorded  within 
one  year  after  proper  magistrates,  courts,  and  registers  shall 
be  appointed  for  that  purpose;  and  personal  property  may  be 
transferred  by  delivery,  saving,  however,  to  the  French  and 
Canadian  inhabitants,  and  other  settlers  of  the  Kaskaskies, 
Saint  Vincents,  and  the  neighboring  \allages,  who  have  here- 
tofore professed  themselves  citizens  of  Virginia,  their  laws  and 
customs  now  in  force  among  them,  relative  to  the  descent  and 
conveyance  of  property. 

Sec.  3.  Be  it  ordained  by  the  authority  aforesaid,  That  there 
shall  be  appointed,  from  time  to  time,  by  Congress,  a  governor, 
whose  commission  shall  continue  in  force  for  the  term  of  three 
years,  unless  sooner  revoked  by  Congress;  he  shall  reside  in  the 
district,  and  have  a  freehold  estate  therein  in  one  thousand 
acres  of  land,  while  in  the  exercise  of  his  office. 

Sec.  4.  There  shall  be  appointed  from  time  to  time,  by  Con- 
gress, a  secretary,  whose  commission  shall  continue  in  force  for 
four  years,  unless  sooner  revoked;  he  shall  reside  in  the  district, 
and  have  a  freehold  estate  therein,  in  five  hundred  acres  of 
land,  while  in  the  exercise  of  his  office.  It  shall  be  his  duty  to 
keep  and  preserve  the  acts  and  laws  passed  by  the  legislature, 
and  the  public  records  of  the  district,  and  the  proceedings  of 
the  governor  in  his  executive  department,  and  transmit  authen- 
tic copies  of  such  acts  and  proceedings  every  six  months  to  the 
Secretary  of  Congress.  There  shall  also  be  appointed  a  court, 
to  consist  of  three  judges,  any  two  of  whom  to  form  a  court, 


GOVERNMENT  OF  TERRITORIES       145 

who  shall  have  a  common-law  jurisdiction,  and  reside  in  the 
district,  and  have  each  therein  a  freehold  estate,  in  five  hun- 
dred acres  of  land,  while  in  the  exercise  of  their  offices;  and  their 
commissions  shall  continue  in  force  during  good  behavior. 

Sec.  5.  The  governor  and  judges,  or  a  majority  of  them,  shall 
adopt  and  publish  in  the  district  such  laws  of  the  original 
States,  criminal  and  civil,  as  may  be  necessary,  and  best  suited 
to  the  circumstances  of  the  district,  and  report  them  to  Con- 
gress from  time  to  time,  which  laws  shall  be  in  force  in  the  dis- 
trict until  the  organization  of  the  general  assembly  therein, 
unless  disapproved  of  by  Congress;  but  afterwards  the  legisla- 
ture shall  have  authority  to  alter  them  as  they  shall  think  fit. 

Sec.  6.  The  governor,  for  the  time  being,  shall  be  com- 
mander-in-chief of  the  militia,  appoint  and  commission  all 
ofi&cers  in  the  same  below  the  rank  of  general  officers;  all  gen- 
eral officers  shall  be  appointed  and  commissioned  by  Congress. 

Sec.  7.  Previous  to  the  organization  of  the  general  assembly 
the  governor  shall  appoint  such  magistrates,  and  other  civil 
officers,  in  each  county  or  township,  as  he  shall  find  necessary 
for  the  preservation  of  the  peace  and  good  order  in  the  same. 
After  the  general  assembly  shall  be  organized  the  powers  and 
duties  of  the  magistrates  and  other  civil  officers  shall  be  regu- 
lated and  defined  by  the  said  assembly;  but  all  magistrates  and 
other  civil  officers,  not  herein  otherwise  directed,  shall,  during 
the  continuance  of  this  temporary  government,  be  appointed 
by  the  governor. 

Sec.  8.  For  the  prevention  of  crimes  and  injuries,  the  laws  to 
be  adopted  or  made  shall  have  force  in  all  parts  of  the  district, 
and  for  the  execution  of  process,  criminal  and  civil,  the  governor 
shall  make  proper  divisions  thereof;  and  he  shall  proceed,  from 
time  to  time,  as  circumstances  may  require,  to  lay  out  the  parts 
of  the  district  in  which  the  Indian  titles  shall  have  been  extin- 
guished, into  counties  and  townships,  subject,  however,  to 
such  alterations  as  may  thereafter  be  made  by  the  legislature. 

Sec.  9.  So  soon  as  there  shall  be  five  thousand  free  male 
inhabitants,  of  full  age,  in  the  district,  upon  giving  proof  thereof 
to  the  governor,  they  shall  receive  authority,  with  time  and 


146    THE  FORMATION  OF  CONSTITUTIONS 

place,  to  elect  representatives  from  their  counties  or  townships, 
to  represent  them  in  the  general  assembly:  Provided,  That  for 
every  five  hundred  free  male  inhabitants  there  shall  be  one 
representative,  and  so  on,  progressively,  with  the  number  of 
free  male  inhabitants,  shall  the  right  of  representation  increase, 
until  the  number  of  representatives  shall  amount  to  twenty- 
five  ;  after  which  the  number  and  proportion  of  representatives 
shall  be  regulated  by  the  legislature:  Provided,  That  no  person 
be  eligible  or  qualified  to  act  as  a  representative,  unless  he  shall 
have  been  a  citizen  of  one  of  the  United  States  three  years,  and 
be  a  resident  in  the  district,  or  unless  he  shall  have  resided  in 
the  district  three  years;  and,  in  either  case,  shall  likewise  hold 
in  his  own  right,  in  fee-simple,  two  hundred  acres  of  land  within 
the  same:  Provided,  also,  That  a  freehold  in  fifty  acres  of  land 
in  the  district,  having  been  a  citizen  of  one  of  the  States,  and 
being  resident  in  the  district,  or  the  like  freehold  and  two  years' 
residence  in  the  district,  shall  be  necessary  to  quahfy  a  man  as 
an  elector  of  a  representative. 

Sec.  io.  The  representatives  thus  elected  shall  serve  for  the 
term  of  two  years;  and  in  case  of  the  death  of  a  representative, 
or  removal  from  office,  the  governor  shall  issue  a  writ  to  the 
county  or  township,  for  which  he  was  a  member,  to  elect  an- 
other in  his  stead,  to  serve  for  the  residue  of  the  term. 

Sec.  II.  The  general  assembly,  or  legislature,  shall  consist  of 
the  governor,  legislative  council,  and  a  house  of  representatives. 
The  legislative  council  shall  consist  of  five  members,  to  continue 
in  office  five  years,  unless  sooner  removed  by  Congress;  any 
three  of  whom  to  be  a  quorum ;  and  the  members  of  the  council 
shall  be  nominated  and  appointed  in  the  following  manner,  to 
wit:  As  soon  as  representatives  shall  be  elected  the  governor 
shall  appoint  a  time  and  place  for  them  to  meet  together,  and 
when  met  they  shall  nominate  ten  persons,  residents  in  the 
district,  and  each  possessed  of  a  freehold  in  five  hundred  acres 
of  land,  and  return  their  names  to  Congress,  five  of  whom  Con- 
gress shall  appoint  and  commission  to  serve  as  aforesaid;  and 
whenever  a  vacancy  shall  happen  in  the  council,  by  death  or 
removal  from  office,  the  house  of  representatives  shall  nominate 


GOVERNMENT  OF  TERRITORIES       147 

two  persons,  qualified  as  aforesaid,  for  each  vacancy,  and 
return  their  names  to  Congress,  one  of  whom  Congress  shall 
appoint  and  commission  for  the  residue  of  the  term;  and  every 
five  years,  four  months  at  least  before  the  expiration  of  the 
time  of  service  of  the  members  of  council,  the  said  house  shall 
nominate  ten  persons,  qualified  as  aforesaid,  and  return  their 
names  to  Congress,  five  of  whom  Congress  shall  appoint  and 
commission  to  serve  as  members  of  the  council  five  years,  unless 
sooner  removed.  And  the  governor,  legislative  council,  and 
house  of  representatives  shall  have  authority  to  make  laws  in 
all  cases  for  the  good  government  of  the  district,  not  repugnant 
to  the  principles  and  articles  in  this  ordinance  estabUshed  and 
declared.  And  all  bills,  having  passed  by  a  majority  in  the 
house,  and  by  a  majority  in  the  council,  shall  be  referred  to  the 
governor  for  his  assent;  but  no  bill,  or  legislative  act  whatever, 
shall  be  of  any  force  without  his  assent.  The  governor  shall 
have  power  to  convene,  prorogue,  and  dissolve  the  general 
assembly  when,  in  his  opinion,  it  shall  be  expedient. 

Sec.  12.  The  governor,  judges,  legislative  council,  secretary, 
and  such  other  officers  as  Congress  shall  appoint  in  the  district, 
shall  take  an  oath  or  affirmation  of  fidelity,  and  of  office;  the 
governor  before  the  President  of  Congress,  and  all  other  officers 
before  the  governor.  As  soon  as  a  legislature  shall  be  formed  in 
the  district,  the  council  and  house  assembled,  in  one  room,  shall 
have  authority,  by  joint  ballot,  to  elect  a  delegate  to  Congress 
who  shall  have  a  seat  in  Congress,  with  a  right  of  debating,  but 
not  of  voting,  during  this  temporary  government. 

Sec.  13.  And  for  extending  the  fundamental  principles  of 
civil  and  rehgious  liberty,  which  form  the  basis  whereon  these 
republics,  their  laws  and  constitutions,  are  erected;  to  fix  and 
establish  those  principles  as  the  basis  of  all  laws,  constitutions, 
and  governments,  which  forever  hereafter  shall  be  formed  in 
the  said  territory;  to  provide,  also,  for  the  establishment  of 
States,  and  permanent  government  therein,  and  for  their  admis- 
sion to  a  share  in  the  Federal  councils  on  an  equal  footing  with 
the  original  States,  at  as  early  periods  as  may  be  consistent 
with  the  general  interest: 


148    THE  FORMATION  OF  CONSTITUTIONS 

Sec.  14.  It  is  hereby  ordained  and  declared,  by  the  authority 
aforesaid,  that  the  following  articles  shall  be  considered  as 
articles  of  compact,  between  the  original  States  and  the  people 
and  States  in  the  said  territory,  and  forever  remain  unalter- 
able, unless  by  common  consent,  to  wit: 

Article  I. 

No  person,  demeaning  himself  in  a  peaceable  and  orderly 
manner,  shall  ever  be  molested  on  account  of  his  mode  of  wor- 
ship, or  religious  sentiments,  in  the  said  territories. 

Article  II. 

The  inhabitants  of  the  said  territory  shall  always  be  entitled 
to  the  benefits  of  the  writ  of  habeas  corpus,  and  of  the  trial  by 
jury;  of  a  proportionate  representation  of  the  people  in  the 
legislature,  and  of  judicial  proceedings  according  to  the  course 
of  common  law.  All  persons  shall  be  bailable,  unless  for  capital 
offences,  where  the  proof  shall  be  evident,  or  the  presumption 
great.  All  fines  shall  be  moderate;  and  no  cruel  or  unusual 
punishments  shall  be  inflicted.  No  man  shall  be  deprived  of 
his  liberty  or  property,  but  by  the  judgment  of  his  peers,  or 
the  law  of  the  land,  and  should  the  public  exigencies  make  it 
necessary,  for  the  common  preservation,  to  take  any  person's 
property,  or  to  demand  his  particular  services,  full  compensa- 
tion shall  be  made  for  the  same.  And,  in  the  just  preservation 
of  rights  and  property,  it  is  understood  and  declared,  that  no 
law  ought  ever  to  be  made  or  have  force  in  the  said  territory, 
that  shall,  in  any  manner  whatever,  interfere  with  or  affect 
private  contracts,  or  engagements,  bona  fide,  and  without 
fraud  previously  formed. 

Article  III. 

Religion,  morality,  and  knowledge  being  necessary  to  good 
government  and  the  happiness  of  mankind,  schools  and  the 
means  of  education  shall  forever  be  encouraged.  The  utmost 
good  faith  shall  always  be  observed  towards  the  Indians;  their 
lands  and  property  shall  never  be  taken  from  them  without 


GOVERNMENT  OF  TERRITORIES       149 

their  consent;  and  in  their  property,  rights,  and  liberty  they 
never  shall  be  invaded  or  disturbed,  unless  in  just  and  lawful 
wars  authorized  by  Congress;  but  laws  founded  in  justice  and 
humanity  shall,  from  time  to  time,  be  made,  for  preventing 
wrongs  being  done  to  them,  and  for  preserving  peace  and  friend- 
ship with  them. 

Article  IV. 

The  said  territory,  and  the  States  which  may  be  formed 
therein,  shall  forever  remain  a  part  of  this  confederacy  of  the 
United  States  of  America,  subject  to  the  Articles  of  Confedera- 
tion, and  to  such  alterations  therein  as  shall  be  constitutionally 
made;  and  to  all  the  acts  and  ordinances  of  the  United  States 
in  Congress  assembled,  conformable  thereto.  The  inhabitants 
and  settlers  in  the  said  territory  shall  be  subject  to  pay  a  part 
of  the  Federal  debts,  contracted,  or  to  be  contracted,  and  a 
proportional  part  of  the  expenses  of  government  to  be  appor- 
tioned on  them  by  Congress,  according  to  the  same  common 
rule  and  measure  by  which  apportionments  thereof  shall  be 
made  on  the  other  States;  and  the  taxes  for  paying  their  pro- 
portion shall  be  laid  and  levied  by  the  authority  and  direction 
of  the  legislatures  of  the  district,  or  districts,  or  new  States,  as 
in  the  original  States,  within  the  time  agreed  upon  by  the 
United  States  in  Congress  assembled.  The  legislatures  of  those 
districts,  or  new  States,  shall  never  interfere  with  the  primary 
disposal  of  the  soil  by  the  United  States  in  Congress  assembled, 
nor  with  any  regulations  Congress  may  find  necessary  for 
securing  the  title  in  such  soil  to  the  bona  fide  purchasers.  No 
tax  shall  be  imposed  on  lands  the  property  of  the  United 
States;  and  in  no  case  shall  non-resident  proprietors  be  taxed 
higher  than  residents.  The  navigable  waters  leading  into  the 
Mississippi  and  Saint  Lawrence,  and  the  carrjdng  places  be- 
tween the  same,  shall  be  common  highways,  and  forever  free, 
as  well  to  the  inhabitants  of  the  said  territory  as  to  the  citizens 
of  the  United  States,  and  those  of  any  other  States  that  may 
be  admitted  into  the  confederacy,  without  any  tax,  impost,  or 
duty  therefor. 


ISO    THE  FORMATION  OF  CONSTITUTIONS 

Article  V. 
There  shall  be  formed  in  the  said  territory  not  less  than  three 
nor  more  than  five  States;  and  the  boundaries  of  the  States, 
as  soon  as  Virginia  shall  alter  her  act  of  cession  and  consent  to 
the  same,  shall  become  fixed  and  estabUshed  as  follows,  to  wit : 
.  .  .  Provided,  however,  And  it  is  further  understood  and  de- 
clared, that  the  boundaries  of  these  three  States  shall  be  sub- 
ject so  far  to  be  altered,  that,  if  Congress  shall  hereafter  find 
it  expedient,  they  shall  have  authority  to  form  one  or  two  States 
in  that  part  of  the  said  territory  which  lies  north  of  an  east  and 
west  line  drawn  through  the  southerly  bend  or  extreme  of  Lake 
Michigan.  And  whenever  any  of  the  said  States  shall  have 
sixty  thousand  free  inhabitants  therein,  such  State  shall  be 
admitted,  by  its  delegates,  into  the  Congress  of  the  United 
States,  on  an  equal  footing  with  the  original  States,  in  all 
respects  whatever;  and  shall  be  at  Uberty  to  form  a  permanent 
constitution  and  State  government:  Provided,  The  constitution 
and  government,  so  to  be  formed,  shall  be  republican,  and  in, 
conformity  to  the  principles  contained  in  these  articles,  and,  so 
far  as  it  can  be  consistent  with  the  general  interest  of  the  con- 
federacy, such  admission  shall  be  allowed  at  an  earlier  period, 
and  when  there  may  be  a  less  number  of  free  inhabitants  in  the 
State  than  sixty  thousand. 

Article  VI. 

There  shall  be  neither  slavery  nor  involuntary  servitude  in 
the  said  territory,  otherwise  than  in  the  punishment  of  crimes, 
whereof  the  party  shall  have  been  duly  convicted:  Provided 
always,  That  any  person  escaping  into  the  same,  from  whom 
labor  or  service  is  lawfully  claimed  in  any  one  of  the  original 
States,  such  fugitive  may  be  lawfully  reclaimed,  and  conveyed 
to  the  person  claiming  his  or  her  labor  or  service  as  afore- 
said. .  .  . 


PART  THREE.     THE  ESTABLISHMENT  OF 
THE  FEDERAL  GOVERNMENT 

CHAPTER  XVn 

PRESIDENT  AND    CONGRESS 

The  Constitution  provided  a  framework  of  Federal  Government.  To 
Congress  fell  the  task  of  providing  for  the  proper  functioning  of  the 
organs  of  government  and  for  their  inter-action.  Wherever  possible, 
Congress  revived  colonial  precedents  and  practices.  The  President's 
speech  at  the  opening  of  Congress  was  not  so  much  an  imitation  of  the 
British  speech  from  the  throne  as  a  continuance  of  a  formality  to  which 
colonial  assemblies  had  long  been  accustomed.  On  the  other  hand,  it  was 
necessary  to  clothe  the  new  presidential  office  with  appropriate  dignity 
and  to  secure  for  it  prestige  at  home  and  abroad.  Tradition  suggested  the 
revival  of  British  forms  and  titles;  but  popular  dislike  of  monarchy  and 
its  trappings  might  not  be  disregarded.  No  one  expressed  more  faithfully 
this  popular  democratic  spirit  than  Senator  William  Maclay  of  Pennsyl- 
vania, whose  journal,  in  the  absence  of  official  records  of  the  early  debates 
in  the  Senate,  becomes  a  source  of  prime  importance.  It  is  interesting  to 
find  Jefferson  urging  Washington  to  exercise  the  veto  —  a  power  which 
no  English  sovereign  had  used  since  the  days  of  Queen  Anne. 

46.  The  Inauguration  of  Washington.^ 

30th  April,  Thursday. — This  is  a  great,  important  day. 
Goddess  of  Etiquette  assist  me  while  I  describe  it.  The  Sen- 
ate stood  adjourned  to  half  after  eleven  o'clock.  About  ten, 
dressed  in  my  best  clothes;  went  for  Mr.  Morris'  Lodgings; 
but  met  his  son,  who  told  me  that  his  father  would  not  be  in 
town  until  Saturday.  Turned  into  the  Hall.  The  crowd  already 
great.  The  Senate  met.  The  Vice-President  rose  in  the  most 
solemn  manner.  .  .  , 

"Gentlemen:  I  wish  for  the  direction  of  the  Senate.  The 
President  will,  I  suppose,  address  the  Congress.  How  shall  I 
behave?  How  shall  we  receive  it?  Shall  it  be  standing  or  sit- 
ting?" 

*  Maclay,  Journal  of  William  Maclay,  7-9. 


152        THE  FEDERAL  GOVERNMENT 

Here  followed  a  considerable  talk  from  him,  which  I  could 
make  nothing  of.  Mr.  Lee  began  with  the  House  of  Commons 
(as  is  usual  with  him),  then  the  House  of  Lords;  then  the  King, 
and  then  back  again.  The  result  of  his  information  was,  that 
the  Lords  sat,  and  the  Commons  stood,  on  the  delivery  of  the 
King's  speech.  Mr.  Izard  got  up  and  told  how  often  he  had 
been  in  the  House  of  Parliament.  He  said  a  great  deal  of  what 
he  had  seen  there;  made,  however,  this  sagacious  discovery, 
that  the  Commons  stood  because  they  had  no  seats  to  sit  on, 
being  arrived  at  the  House  of  Lords.  It  was  discovered,  after 
some  time,  that  the  King  sat,  too,  and  had  his  robes  and  crown 
on. 

Mr.  Adams  got  up  again,  and  said  he  had  been  very  often, 
indeed,  at  the  Parliament  on  those  occasions,  but  there  always 
was  such  a  crowd,  and  ladies  along,  he  could  not  say  how  it  was. 
Mr.  Carroll  got  up  to  declare  that  he  thought  it  of  no  conse- 
quence how  it  was  in  Great  Britain  —  they  were  no  rule  to  us, 
&c.  But  all  at  once  the  Secretary,  who  had  been  out,  whis- 
pered to  the  Chair  that  the  Clerk  from  the  Representatives 
was  at  the  door  with  a  communication.  Gentlemen  of  the 
Senate,  how  shall  he  be  received?  A  silly  kind  of  resolution  of 
the  committee  on  that  business  had  been  laid  on  the  table  some 
days  ago.  The  amount  of  it  was,  that  each  House  should  com- 
municate to  the  other  what  and  how  they  chose;  it  concluded, 
however,  something  in  this  way:  that  everything  should  be 
done  with  all  the  propriety  that  was  proper.  The  question  was, 
Shall  this  be  adopted,  that  we  may  know  how  to  receive  the 
Clerk?  It  was  objected;  this  will  throw  no  light  on  the  subject; 
it  will  leave  you  where  you  are.  Mr.  Lee  brought  the  House  of 
Commons  before  us  again.  He  reprobated  the  rule;  declared 
that  the  Clerk  should  not  come  within  the  bar  of  the  House; 
that  the  proper  mode  was  for  the  Sergeant-at-Arms,  with  the 
mace  on  his  shoulder,  to  meet  the  Clerk  at  the  door  and  receive 
his  communication;  we  are  not,  however,  provided  for  this 
ceremonious  way  of  doing  business,  having  neither  mace  nor 
Sergeant,  nor  Masters  in  Chancery,  who  carry  down  bills  from 
the  English  Lords. 


PRESIDENT  AND  CONGRESS  153 

Mr.  Izard  got  up  and  labored  unintelligibly  to  show  the 
great  distinction  between  a  communication  and  a  delivery  of  a 
thing;  but  he  was  not  minded.  Mr.  Ellsworth  showed  plainly 
enough  that  if  the  Clerk  was  not  permitted  to  deliver  the  com- 
munication, the  Speaker  might  as  well  send  it  enclosed.  Re- 
peated accounts  came  [that]  the  Speaker  and  Representatives 
were  at  the  door.  Confusion  ensued;  the  members  left  their 
seats.  Mr.  Reed  rose  and  called  the  attention  of  the  Senate  to 
the  neglect  that  had  been  shown  to  Mr.  Thomson,  late  Sec- 
retary. Mr.  Lee  rose  to  answer  him ;  but  I  could  not  hear  one 
word  he  said.  The  Speaker  was  introduced,  followed  by  the 
Representatives.  Here  we  sat  an  hour  and  ten  minutes  before 
the  President  arrived  —  this  delay  was  owing  to  Lee,  Izard, 
and  Dalton,  who  had  stayed  with  us  until  the  Speaker  came  in, 
instead  of  going  to  attend  the  President.  The  President  ad- 
vanced between  the  Senate  and  Representatives,  bowing  to 
each.  He  was  placed  in  the  chair  by  the  Vice-President;  the 
Senate,  with  their  President,  on  the  right,  the  Speaker  and 
Representatives  on  his  left.  The  Vice-President  rose,  and 
addressed  a  short  sentence  to  him.  The  import  of  it  was,  that 
he  should  now  take  the  oath  of  ofl&ce  as  President.  He  seemed 
to  have  forgot  half  of  what  he  was  to  say,  for  he  made  a  dead 
pause  and  stood  for  some  time,  to  appearance,  in  a  vacant 
mood.  He  finished  with  a  formal  bow,  and  the  President  was 
conducted  out  of  the  middle  window  into  the  gallery,  and 
the  oath  was  administered  by  the  Chancellor.  Notice  that  the 
business  was  done  was  communicated  to  the  crowd  by  pro- 
clamation, etc.,  who  gave  three  cheers,  and  repeated  it  on 
the  President's  bowing  to  them. 

As  the  company  returned  into  the  chamber,  the  President 
took  the  chair  and  the  Senate  ^nd  Representatives  their  seats. 
He  rose  and  all  rose,  and  addressed  them.  This  great  man  was 
agitated  and  embarrassed  more  than  ever  he  was  by  the  leveled 
cannon  or  pointed  musket.  He  trembled,  and  several  times 
could  scarce  make  out  to  read,  though  it  must  be  supposed  he 
had  often  read  it  before.  He  put  part  of  the  fingers  of  his  left 
hand  into  the  side  of  what  I  think  the  tailors  call  the  fall  of  the 


154        THE  FEDERAL  GOVERNMENT 

breeches,  changing  the  paper  into  his  left  [right]  hand.  After 
some  time  he  then  did  the  same  with  some  of  the  fingers  of  his 
right  hand.  When  he  came  to  the  words  all  the  world,  he  made 
a  flourish  with  his  right  hand  which  left  rather  an  ungainly 
impression.  I  sincerely,  for  my  part,  wished  aU  set  ceremony 
in  the  hands  of  the  dancing  masters,  and  that  this  first  of  men 
had  read  oS  his  address  in  the  plainest  manner,  without  ever 
taking  his  eyes  from  the  paper;  for  I  felt  hurt  that  he  was  not 
first  in  everything.  He  was  dressed  in  deep  brown,  with  metal 
buttons,  with  an  eagle  on  them,  white  stockings,  a  bag,  and 
sword. 

From  the  Hall  there  was  a  grand  procession  to  St.  Paul's 
church,  where  prayers  were  said  by  the  Bishop.  The  procession 
was  well  conducted  and  without  accident,  as  far  as  I  have 
heard.  The  militia  were  all  under  arms,  Imed  the  street  near 
the  church,  made  a  good  figure,  and  behaved  well. 

47.  The  President's  Speech  and  the  Address  of  the  House} 

House  of  Representatives. 
Tuesday,  October  25,  1791. 

A  message  being  received  from  the  Senate,  stating  that  they 
were  ready  to  receive  the  Communication  from  the  President 
of  the  United  States,  the  Speaker,  attended  by  the  members 
of  the  House,  withdrew  to  the  Senate  Chamber  for  the  purpose 
of  receiving  the  same. 

On  the  return  of  the  members,  the  Speaker  laid  before  the 
House  a  copy  of  the  Speech  delivered  by  the  President.  .  .  . 

The  Speech  was  committed  to  a  Committee  of  the  Whole 

to-morrow. 

Wednesday,  October  26. 

The  House  then  went  into  Committee  of  the  Whole,  on  the 
President's  Speech,  Mr.  Muhlenberg  in  the  chair. 

The  Speech  being  read,  Mr.  Vining  moved  a  resolution,  of 
which  the  following  is  the  purport: 

*  Annals  oj  Congress,  2  Cong.,  i  Sess.,  143-47  passim. 


PRESIDENT  AND  CONGRESS  155 

''Resolved,  That  it  is  the  opinion  of  this  committee  that  an 
Address  should  be  presented  to  the  President  of  the  United 
States  by  the  House  of  Representatives,  in  answer  to  his  Speech, 
to  congratulate  him  on  the  prosperous  situation  of  the  United 
States,  expressive  of  the  approbation  of  the  House  of  the  wise 
ana  prudent  measures  he  has  pursued  during  their  recess,  in 
the  execution  of  the  duties  committed  to  his  charge;  promis- 
ing speedy  attention  to  the  important  and  momentous  objects 
recommended  to  their  consideration,  and  expressing  their  ap- 
probation of  the  humane  and  effectual  steps  taken,  under 
his  direction,  for  the  defence  of  the  western  frontiers." 

This  resolution  was  objected  to  by  Messrs.  Laurance,  Sedg- 
wick, Smith,  of  South  Carolina,  and  Livermore,  upon  the  prin- 
ciple, that  it  expressed  the  sense  of  the  House  upon  points 
which  required  further  information  and  investigation  before 
the  House  could,  with  propriety,  determine.  .  .  . 

Several  modifications  were  proposed  to  the  resolution,  which 
was  finally  agreed  to,  as  follows: 

"Resolved,  That  it  is  the  opinion  of  this  Committee  that  a 
respectful  address  ought  to  be  presented  by  the  House  of 
Representatives  to  the  President  of  the  United  States,  in 
answer  to  his  Speech  to  both  Houses  of  Congress  at  the  com- 
mencement of  this  session,  containing  assurances  that  this 
House  will  take  into  consideration  the  various  and  important 
matters  recommended  to  their  attention." 

Mr.  Madison,  Mr.  Laurance,  and  Mr.  Smith,  of  South  Caro- 
lina, were  appointed  a  committee  to  prepare  an  Address,  pur- 
suant to  the  resolution.  .  .  . 

Thursday,  October  27. 

Mr.  Madison,  from  the  committee  appointed,  reported  an 
Address  to  the  President  of  the  United  States,  in  answer  to  his 
speech  to  both  Houses  of  Congress;  which  was  read,  and 
ordered  to  be  committed  to  a  Committee  of  the  whole  House 
immediately. 

The  House  accordingly  resolved  itself  into  a  Committee  of 
the  Whole  House  on  the  said  Address;  and,  after  some  time 


156        THE  FEDERAL  GOVERNMENT 

spent  therein,  Mr.  Muhlenberg  reported  that  the  committee 
had  had  the  said  Address  under  consideration,  and  made  no 
amendment  thereto.  Whereupon,  it 

Resolved,  unanimously,  That  this  House  doth  agree  to  the 
said  Address,  in  the  words  following:  .  .  . 

Resolved,  That  the  Speaker,  attended  by  the  House,  do  pre- 
sent the  said  Address;  and  that  Mr.  Madison,  Mr.  Laurance, 
and  Mr.  Smith,  of  South  Carolina,  be  a  committee  to  wait  on 
the  President  to  know  when  and  where  it  will  be  convenient 
for  him  to  receive  the  same.  .  .  . 

Mr.  Madison,  from  the  committee  appointed  to  wait  on  the 
President  of  the  United  States,  to  know  when  and  where  it 
will  be  convenient  for  him  to  receive  the  Address  of  this  House, 
in  answer  to  his  Speech  to  both  Houses  of  Congress,  reported 
that  the  committee  had  waited  on  the  President,  who  signified 
to  them  that  it  would  be  convenient  to  him  to  receive  the  said 
Address  at  twelve  o'clock  to-morrow,  at  his  own  house. 

Friday,  October  28. 

The  Speaker,  attended  by  the  House,  then  withdrew  to 
the  President  of  the  United  States,  and  there  presented  to  him 
the  Address  of  this  House,  in  answer  to  his  Speech  to  both 
Houses  of  Congress;  to  which  the  President  made  the  following 
reply: 

Gentlemen: 

The  pleasure  I  derive  from  an  assurance  of  your  attention  to 
the  objects  I  have  recommended  to  you  is  doubled  by  your 
concurrence  in  the  testimony  I  have  borne  to  the  prosperous 
condition  of  our  public  affairs. 

Relying  on  the  sanctions  of  your  enlightened  judgment,  and 
on  your  patriotic  aid,  I  shall  be  the  more  encouraged  in  all  my 
endeavors  for  the  public  weal,  and  particularly  in  those  which 
may  be  required  on  my  part  for  executing  the  salutary  measures 
I  anticipate  from  your  present  deliberations. 


PRESIDENT  AND  CONGRESS  157 

48.  Origin  of  the  First  Veto  Message.^ 

Apr.  6.  [1792.]  The  President  called  on  me  before  breakfast 
&  first  introduced  some  other  matters,  then  fell  on  the  repre- 
sentn  bill  which  he  had  now  in  his  possn  for  the  loth  day.  I 
had  before  given  him  my  opn  in  writing  that  the  method  of 
apportionmt  was  contrary  to  the  constn.  He  agreed  that  it 
was  contrary  to  the  common  understanding  of  that  instrument, 
&  to  what  was  understood  at  the  time  by  the  makers  of  it:  that 
yet  it  would  bear  the  constn  which  the  bill  put,  &  he  observed 
that  the  vote  for  &  against  the  bill  was  perfectly  geographical, 
a  northern  agt  a  southern  vote,  &  he  feared  he  should  be 
thought  to  be  taking  side  with  a  southern  party.  I  admitted 
this  motive  of  delicacy,  but  that  it  should  not  induce  him  to  do 
wrong :  urged  the  dangers  to  which  the  scramble  for  the  frac- 
tionary members  would  always  lead.  He  here  expressed  his  fear 
that  there  would  ere  long,  be  a  separation  of  the  union ;  that  the 
public  mind  seemed  dissatisfied  &  tending  to  this.  He  went 
home,  sent  for  Randolph  the  Atty  Genl.  desired  him  to  get  Mr. 
Madison  immediately  &  come  to  me,  &  if  we  three  concurred 
in  opn  that  he  should  negative  the  bill,  he  desired  to  hear  no- 
thing more  about  it  but  that  we  would  draw  the  instrument  for 
him  to  sign.  They  came.  Our  minds  had  been  before  made  up. 
We  drew  the  instrument.  Randolph  carried  it  to  him  &  told 
him  we  all  concurred  in  it.  He  walked  with  him  to  the  door,  and 
as  if  he  still  wished  to  get  off,  he  said,  "  &  you  say  you  approve  of 
this  yourself."  "  Yes,  Sir,  says  Randolph  I  do  upon  my  honor." 
He  sent  it  in  to  the  H.  of  Representatives  instantl)^  A  few  of 
the  hottest  friends  of  the  bill  expressed  passion,  but  the  ma- 
jority were  satisfied,  &  both  in  and  out  of  doors  it  gave  pleasure 
to  have  at  length  an  instance  of  the  negative  being  exercised. 

49.  The  Veto  Message  in  the  House  of  Representatives.'^ 

House  of  Representatives. 
Thursday,  April  5,  1792. 

A  Message  was  received  from  the  President  of  the  United 

^  Writings  of  Thomas  Jeferson  (Ford  ed.),  i,  192. 

*  Amials  of  Congress,  2  Cong,  i  Sess.,  539-41,  passim. 


iS8        THE  FEDERAL  GOVERNMENT 

States  returning  to  the  House  the  bill  passed  by  the  two  Houses 
entitled  "An  act  for  an  Apportionment  of  Representatives 
among  the  several  States  according  to  the  first  Enumeration," 
and  presented  to  the  President  for  his  approbation  on  Monday, 
the  26th  of  March;  to  which  bill  the  President  having  made 
objections,  the  said  objections  were  read,  and  ordered  to  be 
entered  at  large  on  the  Journal,  as  follows: 

"  United  States,  April  $,  1792. 
"Gentlemen  of  the  House  of  Representatives: 

"I  have  maturely  considered  the  act  passed  by  the  two 
Houses  entitled  'An  act  for  an  Apportionment  of  Representa- 
tives among  the  several  States,  according  to  the  first  Enumera- 
tion;' and  I  return  it  to  your  House,  wherein  it  originated,  with 
the  following  objections: 

"First.  The  Constitution  has  prescribed  that  Representa- 
tives shall  be  apportioned  among  the  several  States  according 
to  their  respective  numbers;  and  there  is  no  one  proportion  or 
divisor  which,  applied  to  the  respective  numbers  of  the  States, 
will  yield  the  number  and  allotment  of  Representatives  pro- 
posed by  the  bill. 

"Second.  The  Constitution  has  also  provided  that  the 
number  of  Representatives  shall  not  exceed  one  for  every 
thirty  thousand;  which  restriction  is  by  the  context,  and  by 
fair  and  obvious  construction,  to  be  applied  to  the  separate 
and  respective  numbers  of  the  States;  and  the  bill  has  allotted 
to  eight  of  the  States  more  than  one  for  every  thirty  thousand. 

"  G.  Washington." 

Friday,  April  6. 

The  House  proceeded  to  reconsider  the  bill  passed  by  the 
two  Houses  entitled  "An  act  for  an  Apportionment  of  Repre- 
sentatives among  the  several  States,  according  to  the  first 
Enumeration,"  which  was  presented  for  approbation  on  Mon- 
day, the  26th  of  March,  and  returned  by  the  President  yester- 
day, with  objections. 


PRESIDENT  AND  CONGRESS  159 

The  said  bill  was  read,  and  is  as  follows: 

The  President's  objections  were  also  read;  and,  after  debate 
on  the  subject-matter  of  the  said  bill,  the  question  "That  the 
House,  on  reconsideration,  do  agree  to  pass  the  bill,"  was 
determined  in  the  mode  prescribed  by  the  Constitution  of  the 
United  States,  and  passed  in  the  negative  —  yeas  23,  nays  33 
—  as  follows :  .  .  . 

And  so  the  said  bill  was  rejected,  two-thirds  of  the  House  not 
agreeing  to  pass  the  same. 

50.  President  Jeferson^s  Innovation} 

December  8,  1801. 

Sir:  The  circumstances  under  which  we  find  ourselves  at  this 
place  rendering  inconvenient  the  mode  heretofore  practised, 
of  making  by  personal  address  the  first  communications  be- 
tween the  Legislative  and  Executive  branches,  I  have  adopted 
that  by  Message,  as  used  on  all  subsequent  occasions  through 
the  session.  In  doing  this  I  have  had  principal  regard  to  the 
convenience  of  the  Legislature,  to  the  economy  of  their  time, 
to  their  relief  from  the  embarrassment  of  immediate  answers, 
on  subjects  not  yet  fully  before  them,  and  to  the  benefits 
thence  resulting  to  the  public  affairs.  Trusting  that  a  pro- 
cedure founded  in  these  motives  will  meet  their  approbation,  I 
beg  leave,  through  you,  sir,  to  communicate  the  enclosed  Mes- 
sage, with  the  documents  accompanying  it,  to  the  honorable 
the  Senate,  and  pray  you  to  accept,  for  yourself  and  them,  the 
homage  of  my  high  respect  and  consideration. 

Th.  Jefferson. 

*  Richardson,  Messages  and  Papers  of  the  Presidents,  i,  325. 


CHAPTER  XVIII 

THE    SENATE   AS   AN    EXECUTIVE   COUNCIL 

That  Washington  expected  the  Senate  to  act  as  a  sort  of  executive 
council  admits  of  little  doubt.  The  expectation  was  natural.  The  Conven- 
tion of  1787  had  expressly  rejected  a  proposition  to  establish  such  a  coun- 
cil and  had  associated  the  Senate  with  the  President  in  important  execu- 
tive matters.  Moreover,  the  membership  was  not  at  first  too  large  to 
permit  of  its  acting  in  a  confidential,  advisory  capacity.  But  almost  at 
once,  if  we  may  trust  Maclay's  Journd,  the  Senate  exhibited  an  independ- 
ence and  aloofness  which  in  the  end  prevented  the  establishment  of  inti- 
mate relations. 

51.  Considerations  on  the  Time,  Place,  and  Manner  of 
Consultations.  ^ 

The  President  has  the  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties  and  to  appoint  officers. 

The  Senate,  when  this  power  is  exercised,  is  evidently  a 
council  only  to  the  President,  however  its  concurrence  may  be 
to  his  acts.  It  seems  incident  to  this  relation  between  them, 
that  not  only  the  time,  but  the  place  and  manner  of  consult- 
ation, should  be  with  the  President.  It  is  probable,  that  the 
place  may  vary.  The  indisposition  or  inclination  of  the  Pre- 
sident may  require,  that  the  Senate  should  be  summoned  to 
the  President's  house.  Whenever  the  government  shall  have 
buildings  of  its  own,  an  executive  chamber  will  no  doubt  be 
provided,  where  the  Senate  will  generally  attend  the  President. 
It  is  not  impossible,  that  the  place  may  be  made  to  depend  in 
some  degree  on  the  nature  of  the  business.  In  the  appointment 
to  offices,  the  agency  of  the  Senate  is  purely  executive,  and 
they  may  be  summoned  to  the  President.  In  treaties,  the 
agency  is  perhaps  as  much  of  a  legislative  nature,  and  the  busi- 
ness may  possibly  be  referred  to  their  deliberations  in  their 
legislative  chamber.  The  occasion  for  this  distinction  will  be 
lessened  if  not  destroyed,  when  a  chamber  shall  be  appropri- 
ated for  the  joint  business  of  the  President  and  the  Senate. 

*  August  8, 1789.  Writings  of  George  Washington  (Ford  ed.),  xi,  418-19. 


SENATE  AS  AN  EXECUTIVE  COUNCIL    i6i 

The  manner  of  consultation  may  also  vary.  The  indisposi- 
tion of  the  President  may  supersede  the  mere  question  of  con- 
veniency.  The  inclination  or  ideas  of  different  Presidents  may 
be  different.  The  opinions,  both  of  President  and  Senators,  as 
to  the  proper  manner,  may  be  changed  by  experience.  In  some 
kinds  of  business  it  may  be  found  best  for  the  President  to 
make  his  propositions  orally  and  in  person,  in  others  by  a 
written  message.  On  some  occasions  it  may  be  most  conven- 
ient, that  the  President  should  attend  the  deliberations  and 
decisions  on  his  propositions;  on  others  that  he  should  not;  or 
that  he  should  not  attend  the  whole  of  the  time.  In  other  cases, 
again,  as  in  treaties  of  a  complicated  nature,  it  may  happen, 
that  he  will  send  his  propositions  in  writing,  and  consult  the 
Senate  in  person  after  time  shall  have  been  allowed  for  consider- 
ation. Many  other  varieties  may  be  suggested  as  to  the  mode 
by  practice. 

If  these  remarks  be  just,  it  would  seem  not  amiss,  that  the 
Senate  should  accommodate  their  rules  to  the  uncertainty  of 
the  particular  mode  and  place,  that  may  be  preferred,  provid- 
ing for  the  reception  of  either  oral  or  written  propositions,  and 
for  giving  their  consent  and  advice  in  either  the  presence  or 
absence  of  the  President,  leaving  him  free  to  use  the  mode  and 
place,  that  may  be  found  most  eligible  and  accordant  with 
other  business,  which  may  be  before  him  at  the  time. 

52.  How  the  President  shall  he  received  in  the  Senate} 

^^  Resolved,  That  when  nominations  shall  be  made  in  writing 
by  the  President  of  the  United  States  to  the  Senate,  a  future 
da}^  shall  be  assigned,  unless  the  Senate  shall  direct  otherwise, 
for  taking  them  into  consideration;  that  when  the  President  of 
the  United  States  shall  meet  the  Senate  in  the  Senate-chamber, 
the  President  of  the  Senate  shall  have  a  chair  on  the  floor,  be 
considered  as  at  the  head  of  the  Senate,  and  his  chair  shall  be 
assigned  to  the  President  of  the  United  States;  that,  when  the 
Senate  shall  be  convened  by  the  President  of  the  United  States 

*  Resolution  of  the  Senate,  August  21,  1789.  Writings  of  Washington 
(Ford  ed.),  xi,  419  n. 


i62        THE  FEDERAL  GOVERNMENT 

at  any  other  place,  the  President  of  the  Senate  and  Senators 
shall  attend  at  the  place  appointed.  The  secretary  of  the  Sen- 
ate shall  also  attend  to  take  the  minutes  of  the  Senate;  that  all 
questions  shall  be  put  by  the  President  of  the  Senate,  either  in 
the  presence  or  absence  of  the  President  of  the  United  States, 
and  the  Senators  shall  signify  their  assent  or  dissent  by  answer- 
ing viva  voce  Ay  or  No." 

53.  President  and  Senate  in  Executive  Session.^ 

August  22d,  Saturday.  —  Senate  met,  and  went  on  the 
Coasting  bill.  The  door-keeper  soon  told  us  of  the  arrival  of  the 
President.  The  President  was  mtroduced  and  took  our  Vice- 
President's  chair.  He  rose  and  told  us  bluntly  that  he  had 
called  on  us  for  our  advice  and  consent  to  some  propositions 
respecting  the  treaty  to  be  held  with  the  Southern  Indians. 
Said  he  had  brought  General  Knox  with  him,  who  was  well 
acquainted  with  the  business.  He  then  turned  to  General 
Knox,  who  was  seated  on  the  left  of  the  chair.  Gen.  Knox 
handed  him  a  paper,  which  he  handed  to  the  President  of  the 
Senate,  who  was  seated  on  a  chair  on  the  floor  to  his  right. 
Our  Vice-President  hurried  over  the  paper.  Carriages  were 
driving  past,  and  such  a  noise,  I  could  tell  it  was  something 
about  Indians,  but  was  not  master  of  one  sentence  of  it.  Signs 
were  made  to  the  door-keeper  to  shut  down  the  sashes.  Seven 
heads,  as  we  since  have  learned,  were  stated  at  the  end  of  the 
paper,  which  the  Senate  were  to  give  their  advice  and  consent 
to.  They  were  so  framed  that  this  could  be  done  by  aye  or  no. 
The  President  told  us  that  a  paper  from  an  agent  of  the  Chero- 
kees  was  given  to  him  just  as  he  was  coming  to  the  Hall.  He 
motioned  to  Gen.  Knox  for  it,  and  handed  it  to  the  President 
of  the  Senate.  It  was  read.  It  complained  hard  of  the  unjust 
treatment  of  the  people  of  North  Carolina,  &c.,  their  violation 
of  treaties,  &c.  Our  Vice-President  now  read  off  the  first  article, 
to  which  our  advice  and  consent  was  requested.  It  referred 
back  principally  to  some  statements  in  the  body  of  the  writing 
which  had  been  read. 

*  Maclay,  Journal  of  William  Maclay,  1 28-33  Passim. 


SENATE  AS  AN  EXECUTIVE  COUNCIL    163 

Mr.  Morris  rose.  Said  the  noise  of  carriages  had  been  so 
great  that  he  really  could  not  say  that  he  had  heard  the  body 
of  the  paper  which  had  been  read,  and  prayed  it  might  be  read 
again.  It  was  so. 

It  was  no  sooner  read,  than  our  Vice-President  immediately 
read  the  first  head  over  again,  and  put  the  question,  Do  you 
advise  and  consent,  &c.?  There  was  a  dead  pause.  Mr.  Morris 
whispered  me,  *'  We  will  see  who  will  venture  to  break  silence 
first." 

Our  President  was  proceeding:  "As  many  as  — " 

I  rose  reluctantly,  indeed,  and  from  the  length  of  the  pause, 
the  hint  given  by  Mr.  Morris,  and  the  proceeding  of  our  Vice- 
President,  it  appeared  to  me  that  if  I  did  not,  no  other  one 
would,  and  we  should  have  these  advices  and  consents  ravished, 
in  a  degree,  from  us. 

Mr.  President:  The  paper  which  you  have  now  read  to  us 
appears  to  have  for  its  basis  sundry  treaties  and  public  trans- 
actions between  the  Southern  Indians  and  the  United  States 
and  the  States  of  Georgia,  North  Carolina,  and  South  Carolina, 
The  business  is  new  to  the  Senate.  It  is  of  importance.  It  is 
our  duty  to  inform  ourselves,  as  well  as  possible,  on- the  sub- 
ject. I  therefore  call  for  the  reading  of  the  treaties  and  other 
documents  alluded  to  in  the  paper  before  us. 

I  cast  an  eye  at  the  President  of  the  United  States.  I  saw  he 
wore  an  aspect  of  stern  displeasure.  General  Knox  turned  up 
some  of  the  acts  of  Congress,  and  the  protests  of  one  Blount, 
agent  for  North  Carolina.  Mr.  Lee  rose  and  named  a  particular 
treaty,  which  he  wished  read.  The  business  labored  with  the 
Senate.  There  appeared  an  evident  reluctance  to  proceed. 
The  first  article  was  about  the  Cherokees.  It  was  hinted  that 
the  person  just  come  from  there  might  have  more  information. 
The  President  of  the  United  States  rose;  said  he  had  no  objec- 
tion to  that  article  being  postponed,  and  in  the  meantime  he 
would  see  the  messenger. 

The  second  article,  which  was  about  the  Chickasaws  and 
Choctaws,  was  likewise  postponed.  The  third  article  more 
immediately  concerned  Georgia  and  the  Creeks.    Mr.  Gunn, 


i64        THE  FEDERAL  GOVERNMENT 

from  Georgia,  moved  that  this  be  postponed  till  Monday.  He 
was  seconded  by  Mr.  Few.  General  Knox  was  asked  when 
General  Lincohi  would  be  here  on  his  way  to  Georgia.  He 
answered  not  until  Saturday  next.  The  whole  House  seemed 
against  Gunn  and  Few.  I  rose,  and  said;  When  I  considered 
the  newness  and  importance  of  the  subject,  that  one  article 
had  already  been  postponed;  that  General  Lincoln,  the  first 
named  of  the  commissioners,  would  not  be  here  for  a  week;  the 
deep  interest  Georgia  had  in  this  affair,  —  I  could  not  think  it 
improper  that  the  Senators  from  that  State  should  be  indulged 
in  a  postponement  until  Monday;  and  more  especially  as  I  had 
not  heard  any  inconvenience  pointed  out  that  could  possibly 

flow  from  it. 

The  question  was  put,  and  actually  carried;  but  Ellsworth 
immediately  began  a  long  discourse  on  the  merits  of  the  busi- 
ness. He  was  answered  by  Lee,  who  appealed  to  the  Constitu- 
tion with  regard  to  the  power  of  making  war.  Butler  and 
Izard  answered,  and  Mr.  Morris  at  last  informed  the  disputants 
that  they  were  debating  on  a  subject  that  was  actually  post- 
poned. Mr.  Adams  denied,  in  the  face  of  the  House,  that  it 
had  been  postponed.  This  very  trick  has  been  played  by  him 
and  his  New  England  men  more  than  once.  The  question  was, 
however,  put  a  second  time,  and  carried. 

I  had,  at  an  early  stage  of  the  business,  whispered  Mr. 
Morris  that  I  thought  the  best  way  to  conduct  the  business 
was  to  have  all  the  papers  committed.  My  reasons  were  that 
I  saw  no  chance  of  a  fair  investigation  of  subjects  while  the 
President  of  the  United  States  sat  there,  with  his  Secretary  of 
War  to  support  his  opinions,  and  overawe  the  timid  and  neutral 
part  of  the  Senate.  Mr.  Morris  hastily  rose,  and  moved  that 
the  papers  communicated  to  the  Senate  by  the  President  of 
the  United  States  should  be  referred  to  a  committee  of  five, 
to  report  as  soon  as  might  be  on  them.  He  was  seconded  by 
Mr.  Gunn.  Several  members  grumbled  some  objections.  Mr. 
Butler  rose;  made  a  lengthy  speech  against  commitment;  said 
we  were  acting  as  a  council.  No  council  ever  committed  any- 
thing. Committees  were  an  improper  mode  of  doing  business; 


SENATE  AS  AN  EXECUTIVE  COUNCIL    165 

it  threw  business  out  of  the  hands  of  the  many  into  the  hands 
of  the  few,  &c. 

I  rose,  and  supported  the  mode  of  doing  business  by  com- 
mittees; that  committees  were  used  in  all  pubHc  deliberative 
bodies,  &c.  I  thought  I  did  the  subject  justice,  but  concluded 
the  commitment  cannot  be  attended  with  any  possible  incon- 
venience. Some  articles  are  already  postponed  until  Monday. 
Whoever  the  committee  are,  if  committed,  they  must  make 
their  report  on  Monday  morning.  I  spoke  through  the  whole 
in  a  low  tone  of  voice.  Peevishness  itself,  I  think,  could  not 
have  taken  offense  at  anything  I  said. 

As  I  sat  down,  the  President  of  the  United  States  started  up 
in  a  violent  fret.  "  This  defeats  every  purpose  of  my  coining  here^'' 
were  the  first  words  that  he  said.  He  then  went  on  that  he  had 
brought  his  Secretary  at  War  with  him  to  give  every  necessary 
information;  that  the  Secretary  knew  all  about  the  business, 
and  yet  he  was  delayed,  and  could  not  go  on  with  the  matter. 
He  cooled,  however,  by  degrees.  Said  he  had  no  objection  to 
putting  off  this  matter  until  Monday,  but  declared  he  did  not 
understand  the  matter  of  commitment.  He  might  be  delayed; 
he  could  not  tell  how  long. 

He  rose  a  second  time,  and  said  he  had  no  objection  to 
postponement  until  Monday  at  ten  o'clock.  By  the  looks  of 
the  Senate,  this  seemed  agreed  to.  A  pause  for  sometime  en- 
sued. We  waited  for  him  to  withdraw.  He  did  so,  with  a  dis- 
contented air.  Had  it  been  any  other  than  the  man  who  I  wish 
to  regard  as  the  first  character  in  the  world,  I  would  have 
said,  with  sullen  dignity. 

August  24th,  Monday.  —  The  Senate  met.  The  President  of 
the  United  States  soon  took  his  seat,  and  the  business  began. 
The  President  wore  a  different  aspect  from  what  he  did  Satur- 
day. He  was  placid  and  serene,  and  manifested  a  spirit  of 
accommodation;  declared  his  consent  that  his  questions  should 
be  amended.  A  tedious  debate  took  place  on  the  third  article.  I 
was  called  on  by  Mr.  Lee,  of  Virginia,  to  state  something 
respecting  the  treaty  held  by  Pennsylvania.  This  brought  me 


i66        THE  FEDERAL  GOVERNMENT 

up.  I  did  not  speak  long,  but  endeavored  to  be  as  pointed  as 
possible.  The  third  article  consisted  of  two  questions.  The 
first  I  was  for,  I  disliked  the  second,  but  both  were  carried. 
The  fourth  article  consisted  of  sundry  questions.  I  moved 
pointedly  for  a  division.  Got  it.  Voted  for  the  first,  and  op- 
posed the  second  part.  A  long  debate  ensued,  which  was 
likely  to  end  only  in  words.  I  moved  to  have  the  words  "  in 
failure  thereof  by  the  United  States,"  struck  out,  and  al- 
though Ellsworth,  Wyngate,  and  Dalton  had  spoke  on  the 
same  side  with  me,  yet  I  was  not  seconded.  My  colleague 
had  in  private  declared  himself  of  my  opinion  also.  It  was 
an  engagement  that  the  United  States  would  pay  the  stip- 
ulated purchase  money  for  Georgia,  in  case  Georgia  did  not. 
The  arguments  I  used  on  this  subject  were  so  plain,  I  need 
not  set  them  down.  Yet  a  shamefacedness,  or  I  know  not 
what,  flowing  from  the  presence  of  the  President,  kept  every- 
body silent. 

The  next  clause  was  for  a  free  port  on  the  Altamaha  or  St. 
Mary's  river.  This  produced  some  debate,  and  the  President 
proposed  "secure"  port  in  place  of  "free"  port.  Agreed  to. 
Now  followed  something  of  giving  the  Indians  commissions, 
on  their  taking  the  oaths  to  Government.  It  was  a  silly  affair, 
but  it  was  carried  without  any  debate.  Now  followed  a  clause, 
whether  the  cession  of  lands  should  be  made  an  ultimatum 
with  the  Creeks.  There  was  an  alternative  in  case  this  should 
be  negatived;  but,  strange  to  tell,  the  Senate  negatived  both, 
when  it  was  plain  one  only  should  have  been  so.  A  boundary 
was  named  by  a  following  clause  which  the  commissioners  were 
to  adhere  to.  Money  and  honorary  commissions  to  be  given  to 
the  Indians.  The  old  treaty  with  the  Creeks,  Choctaws,  and 
Chickasaws,  made  the  basis  of  the  future  treaty,  though  none 
of  them  were  read  to  us,  nor  a  single  principle  of  them  explained, 
(but  it  was  late.)  The  twenty  thousand  dollars  applied  to  this 
treaty,  if  necessary.  This  closed  the  business.  The  President 
of  the  United  States  withdrew,  and  the  Senate  adjourned. 

Just  as  the  Senate  had  fairly  entered  on  business,  I  was 


SENATE  AS  AN  EXECUTIVE  COUNCIL    167 

called  out  by  the  door-keeper  to  speak  to  Col.  Humphreys.  It 
was  to  invite  me  to  dimier  with  the  President^  on  Thursday 
next,  at  four  o'clock.  I  really  was  surprised  at  the  invitation. 
It  will  be  my  duty  to  go;  however,  I  will  make  no  inferences 
whatever.  I  am  convinced  all  the  dinners  he  can  now  give,  or 
ever  could,  will  make  no  difference  in  my  conduct.  Perhaps  he 
knew  not  of  my  being  in  town.  Perhaps  he  has  changed  his 
mind  of  me.  I  was  long  enough  in  town,  however,  before  my 
going  home.  It  is  a  thing,  of  course,  and  of  no  consequence; 
nor  shall  it  have  any  with  me. 


CHAPTER  XIX 

THE  APPOINTING  AND  REMOVING  POWER  OF  THE 
PRESIDENT 

The  following  extracts  are  from  a  debate  in  the  House  of  Representa- 
tives, during  the  first  session  of  Congress,  on  the  bill  to  establish  a  depart- 
ment of  foreign  affairs,  the  head  of  which  was  to  be  appointed  by  the 
President  "by  and  with  the  advice  and  consent  of  the  Senate,  and  to  be 
removable  by  the  President."  Both  the  constitutionality  and  the  expe- 
diency of  vesting  the  power  of  removal  in  the  President  alone  were  ques- 
tioned. The  debate  was  occasioned  by  a  motion  to  strike  out  the  clause 
"to  be  removable  by  the  President."  In  the  end  a  majority  concurred  in 
conceding  the  power  to  the  President  alone,  but  hesitated  to  appear  to 
grant  the  power  in  a  legislative  act.  The  objectionable  clause  was  stricken 
out,  after  an  amendment  had  been  adopted  which  stated  that  "whenever 
said  principal  officer  shall  be  removed  by  the  President,"  the  chief  clerk 
should  perform  his  duties.  The  various  arguments  used  by  his  opponents 
are  summarized  by  Madison;  the  views  of  White  were  held  by  a  consid- 
erable minority. 

54.  Debate  on  the  Establishment  of  a  Secretaryship  of  Foreign 

Affairs.^ 

Mr.  White.  —  The  constitution  gives  the  President  the 
power  of  nominating,  and,  by  and  with  the  advice  and  consent 
of  the  Senate,  appointing  to  ofl&ce.  As  I  conceive  the  power  of 
appointing  and  dismissing  to  be  united  in  their  natures,  and  a 
principle  that  never  was  called  in  question  in  any  Government, 
I  am  averse  to  that  part  of  the  clause  which  subjects  the  Sec- 
retary of  Foreign  Affairs  to  be  removed  at  the  will  of  the  Presi- 
dent. In  the  constitution,  special  provision  is  made  for  the 
removal  of  the  judges;  that  I  acknowledge  to  be  a  deviation 
from  my  principle;  but  as  it  is  a  constitutional  provision,  it  is 
to  be  admitted.  In  all  cases  not  otherwise  provided  for  in  the 
constitution,  I  take  it,  that  the  principle  I  have  laid  down  is 
the  governing  one.   Now  the  constitution  has  associated  the 

*  House  of  Representatives,  June  16-17,  1789.  Annals  of  Congress, 
I  Cong.,  I  Sess.,  473-521  passim. 


APPOINTING  AND  REMOVING  POWER    169 

Senate  with  the  President,  in  appointing  the  heads  of  depart- 
ments. The  Secretary  of  Foreign  Affairs  is  the  head  of  a  de- 
partment ;  for  the  words  of  the  law  declare,  that  there  shall  be 
a  department  established,  at  the  head  of  which  shall  be  an 
oflficer  to  be  so  denominated.  If,  then,  the  Senate  are  associated 
with  the  President  in  the  appointment,  they  ought  also  to  be 
associated  in  the  dismission  from  office.  .  .  . 

I  differ  also  with  my  colleague  in  the  principle  that  he  has 
laid  down,  that  this  is  in  its  nature  an  executive  power.  The 
constitution  supposes  power  incident  to  Government,  and 
arranges  it  into  distinct  branches,  with  or  without  checks;  but 
it  enumerates  under  each  department  the  powers  it  may  exer- 
cise. The  Legislature  may  exert  its  authority  in  passing  laws 
relating  to  any  of  its  particular  powers.  The  executive  power 
is  vested  in  the  President;  but  the  executive  powers  so  vested, 
are  those  enumerated  in  the  constitution.  He  may  nominate, 
and,  by  and  with  the  advice  and  consent  of  the  Senate,  appoint 
all  officers,  because  the  constitution  gives  this  power,  and  not 
because  the  power  is  in  its  nature  a  power  incident  to  his  de- 
partment. My  ideas  of  the  legislative  and  executive  powers 
are  precisely  the  same.  The  Legislature  may  do  certain  acts 
because  the  constitution  says  they  shall  have  power  to  do  them, 
and  the  Executive  Magistrate  is  authorized  to  exercise  powers 
because  they  are  vested  in  him  by  the  same  instrument.  It  has 
given  him  the  power  of  appointment  under  certain  qualifica- 
tions ;  the  power  of  removal  is  incident  to  the  power  of  appoint- 
ment, and  both  equally  dependent  upon  the  arrangement  made 
in  the  constitution;  consequently,  a  dismission  from  office  must 
be  brought  about  by  the  same  modification  as  the  appointment. 

Mr.  Madison.  —  I  feel  the  importance  of  the  question,  and 
know  that  our  decision  will  involve  the  decision  of  all  similar 
cases.  The  decision  that  is  at  this  time  made,  will  become  the 
permanent  exposition  of  the  constitution ;  and  on  a  permanent 
exposition  of  the  constitution  will  depend  the  genius  and 
character  of  the  whole  Government.  .  .  .  Another  doctrine, 
which  has  found  very  respectable  friends,  has  been  particularly 
advocated  by  the  gentleman  from  South  Carolina,  (Mr.  Smith). 


170        THE  FEDERAL  GOVERNMENT 

It  is  this:  when  an  officer  is  appointed  by  the  President  and 
Senate,  he  can  only  be  displaced  for  malfeasance  in  his  office 
by  impeachment.  I  think  this  would  give  a  stabiHty  to  the 
executive  department,  so  far  as  it  may  be  described  by  the 
heads  of  departments,  which  is  more  mcompatible  with  the 
genius  of  republican  Governments  in  general,  and  this  consti- 
tution in  particular,  than  any  doctrme  which  has  yet  been 
proposed.  The  danger  to  liberty,  the  danger  of  mal-adminis- 
tration,  has  not  yet  been  found  to  he  so  much  in  the  faciHty 
of  introducing  improper  persons  into  office,  as  in  the  difficulty 
of  displacing  those  who  are  unworthy  of  the  pubhc  trust.  If  it 
is  said,  that  an  oflficer  once  appointed  shall  not  be  displaced 
without  the  formahty  required  by  impeachment,  I  shall  be 
glad  to  know  what  security  we  have  for  the  faithful  admin- 
istration of  the  Government?  Every  individual,  in  the  long 
chain  which  extends  from  the  highest  to  the  lowest  link  of  the 
Executive  Magistracy,  would  find  a  security  in  his  situation 
which  would  relax  his  fidelity  and  promptitude  in  the  dis- 
charge of  his  duty. 

The  doctrine,  however,  which  seems  to  stand  most  in  oppo- 
sition to  the  principles  I  contend  for,  is,  that  the  power  to  annul 
an  appointment  is,  in  the  nature  of  things,  incidental  to  the 
power  which  makes  the  appointment.  I  agree  that  if  nothing 
more  was  said  in  the  constitution  than  that  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate,  should  appoint 
to  office,  there  would  be  great  force  in  saying  that  the  power 
of  removal  resulted  by  a  natural  implication  from  the  power  of 
appointing.  But  there  is  another  part  of  the  constitution,  no 
less  expKcit  than  the  one  on  which  the  gentleman's  doctrine  is 
founded ;  it  is  that  part  which  declares  that  the  executive  power 
shall  be  vested  in  a  President  of  the  United  States.  The  associ- 
ation of  the  Senate  with  the  President  in  exercising  that  partic- 
ular function,  is  an  exception  to  this  general  rule;  and  excep- 
tions to  general  rules,  I  conceive,  are  ever  to  be  taken  strictly. 
But  there  is  another  part  of  the  constitution  which  inclines, 
in  my  judgment,  to  favor  the  construction  I  put  upon  it;  the 
President  is  required  to  take  care  that  the  laws  be  faithfully 


APPOINTING  AND  REMOVING  POWER    171 

executed.  If  the  duty  to  see  the  laws  faithfully  executed  be 
required  at  the  hands  of  the  Executive  Magistrate,  it  would 
seem  that  it  was  generally  intended  he  should  have  that  species 
of  power  which  is  necessary  to  accomplish  that  end.  Now,  if  the 
officer  when  once  appointed  is  not  to  depend  upon  the  Pre- 
sident for  his  official  existence,  but  upon  a  distinct  body,  (for 
where  there  are  two  negatives  required,  either  can  prevent  the 
removal,)  I  confess  I  do  not  see  how  the  President  can  take 
care  that  the  laws  be  faithfully  executed.  It  is  true,  by  a  cir- 
cuitous operation,  he  may  obtain  an  impeachment,  and  even 
without  this  it  is  possible  he  may  obtain  the  concurrence  of  the 
Senate  for  the  purpose  of  displacing  an  officer;  but  would  this 
give  that  species  of  control  to  the  Executive  Magistrate  which 
seems  to  be  required  by  the  constitution?  I  own,  if  my  opinion 
was  not  contrary  to  that  entertained  by  what  I  suppose  to  be 
the  minority  on  this  question,  I  should  be  doubtful  of  being 
mistaken,  when  I  discovered  how  inconsistent  that  construc- 
tion would  make  the  constitution  with  itself.  I  can  hardly 
bring  myself  to  imagine  the  wisdom  of  the  convention  who 
framed  the  constitution  contemplated  such  incongruity. 

There  is  another  maxim  which  ought  to  direct  us  in  expound- 
ing the  constitution,  and  is  of  great  importance.  It  is  laid  down, 
in  most  of  the  constitutions  or  bills  of  rights  in  the  republics 
of  America;  it  is  to  be  found  in  the  political  writings  of  the  most 
celebrated  civilians,  and  is  every  where  held  as  essential  to  the 
preservation  of  liberty,  that  the  three  great  departments  of 
Government  be  kept  separate  and  distinct;  and  if  in  any  case 
they  are  blended,  it  is  in  order  to  admit  a  partial  qualification, 
in  order  more  effectually  to  guard  against  an  entire  consolida- 
tion. I  think,  therefore,  when  we  review  the  several  parts  of 
this  constitution,  when  it  says  that  the  legislative  powers  shall 
be  vested  in  a  Congress  of  the  United  States  under  certain 
exceptions,  and  the  executive  power  vested  in  the  President 
with  certain  exceptions,  we  must  suppose  they  were  intended 
to  be  kept  separate  in  all  cases  in  which  they  are  not  blended, 
and  ought,  consequently,  to  expound  the  constitution  so  as  to 
blend  them  as  little  as  possible. 


172        THE  FEDERAL  GOVERNMENT 

Every  thing  relative  to  the  merits  of  the  question  as  distin- 
guished from  a  constitutional  question,  seems  to  turn  on  the 
danger  of  such  a  power  vested  in  the  President  alone.  But  when 
I  consider  the  checks  under  which  he  lies  in  the  exercise  of  this 
power,  I  own  to  you  I  feel  no  apprehensions  but  what  arise 
from  the  dangers  incidental  to  the  power  itself;  for  dangers  will 
be  incidental  to  it,  vest  it  where  you  please.  I  will  not  reiter- 
ate what  was  said  before  with  respect  to  the  mode  of  election, 
and  the  extreme  improbability  that  any  citizen  will  be  selected 
from  the  mass  of  citizens  who  is  not  highly  distinguished  by  his 
abilities  and  worth ;  in  this  alone  we  have  no  small  security  for 
the  faithful  exercise  of  this  power.  But,  throwing  that  out  of 
the  question,  let  us  consider  the  restraints  he  will  feel  after  he 
is  placed  in  that  elevated  station.  It  is  to  be  remarked,  that 
the  power  in  this  case  will  not  consist  so  much  in  continuing  a 
bad  man  in  office,  as  in  the  danger  of  displacing  a  good  one. 
Perhaps  the  great  danger,  as  has  been  observed,  of  abuse  in 
the  executive  power,  lies  in  the  improper  continuance  of  bad 
men  in  office.  But  the  power  we  contend  for  will  not  enable 
him  to  do  this;  for  if  an  unworthy  man  be  continued  in  office 
by  an  unworthy  President,  the  House  of  Representatives  can 
at  any  time  impeach  him,  and  the  Senate  can  remove  him, 
whether  the  President  chooses  or  not.  The  danger  then  con- 
sists merely  in  this:  the  President  can  displace  from  office  a 
man  whose  merits  require  that  he  should  be  continued  in  it. 
What  will  be  the  motives  which  the  President  can  feel  for  such 
abuse  of  his  power,  and  the  restraints  that  operate  to  prevent 
it?  In  the  first  place,  he  will  be  impeachable  by  this  House, 
before  the  Senate,  for  such  an  act  of  mal-administration ;  for  I 
contend  that  the  wanton  removal  of  meritorious  officers  would 
subject  hun  to  impeachment  and  removal  from  his  own  high 
trust.  But  what  can  be  his  motives  for  displacing  a  worthy 
man?  It  must  be  that  he  may  fill  the  place  with  an  unworthy 
creature  of  his  own.  Can  he  accompfish  this  end?  No;  he  can 
place  no  man  in  the  vacancy  whom  the  Senate  shall  not  ap- 
prove; and  if  he  could  fill  the  vacancy  with  the  man  he  might 
choose,  I  am  sure  he  would  have  little  inducement  to  make  an 


APPOINTING  AND  REMOVING  POWER    173 

improper  removal.  Let  us  consider  the  consequences.  The 
injured  man  will  be  supported  by  the  popular  opinion ;  the  com- 
munity will  take  side  with  him  against  the  President;  it  will 
facilitate  those  combinations,  and  give  success  to  those  exer- 
tions which  will  be  pursued  to  prevent  his  re-election.  To  dis- 
place a  man  of  high  merit,  and  who  from  his  station  may 
be  supposed  a  man  of  extensive  influence,  are  considerations 
which  will  excite  serious  reflections  beforehand  in  the  mind  of 
any  man  who  may  fill  the  Presidential  chair.  The  friends  of 
those  individuals  and  the  public  sympathy  will  be  against  him. 
If  this  should  not  produce  his  impeachment  before  the  Senate, 
it  will  amount  to  an  impeachment  before  the  community,  who 
will  have  the  power  of  punishment,  by  refusing  to  re-elect  him. 
But  suppose  this  persecuted  individual  cannot  obtain  revenge 
in  this  mode;  there  are  other  modes  in  which  he  could  make  the 
situation  of  the  President  very  inconvenient,  if  you  suppose 
him  resolutely  bent  on  executing  the  dictates  of  resentment. 
If  he  had  not  influence  enough  to  direct  the  vengeance  of  the 
whole  community,  he  may  probably  be  able  to  obtain  an 
appointment  in  one  or  the  other  branch  of  the  Legislature ;  and 
being  a  man  of  weight,  talents,  and  influence,  in  either  case  he 
may  prove  to  the  President  troublesome  indeed.  We  have 
seen  examples  in  the  history  of  other  nations,  which  justifies 
the  remark  I  now  have  made.  Though  the  prerogatives  of  the 
British  King  are  great  as  his  rank,  and  it  is  unquestionably 
known  that  he  has  a  positive  influence  over  both  branches  of 
the  legislative  body,  yet  there  have  been  examples  in  which 
the  appointment  and  removal  of  ministers  have  been  found  to 
be  dictated  by  one  or  other  of  those  branches.  Now  if  this  be 
the  case  with  an  hereditary  Monarch,  possessed  of  those  high 
prerogatives  and  furnished  with  so  many  means  of  influence; 
can  we  suppose  a  President,  elected  for  four  years  only,  depend- 
ent upon  the  popular  voice,  impeachable  by  the  Legislature, 
little,  if  at  all,  distinguished  for  wealth,  personal  talents,  or 
influence  from  the  head  of  the  department  himself;  I  say,  will 
he  bid  defiance  to  all  these  considerations,  and  wantonly  dis- 
miss a  meritorious  and  virtuous  officer?   Such  abuse  of  power 


174        THE  FEDERAL  GOVERNMENT 

exceeds  my  conception.  If  any  thing  takes  place  in  the  ordin- 
ary course  of  business  of  this  kind,  my  imagination  cannot 
extend  to  it  on  any  rational  principle.  But  let  us  not  consider 
the  question  on  one  side  only;  there  are  dangers  to  be  contem- 
plated on  the  other.  Vest  this  power  in  the  Senate  jointly  with 
the  President,  and  you  abolish  at  once  that  great  principle  of 
unity  and  responsibihty  in  the  executive  department,  which 
was  intended  for  the  security  of  liberty  and  the  public  good. 
If  the  President  should  possess  alone  the  power  of  removal  from 
office,  those  who  are  employed  in  the  execution  of  the  law  will 
be  in  their  proper  situation,  and  the  chain  of  dependence  be 
preserved;  the  lowest  ofl&cers,  the  middle  grade,  and  the  high- 
est, will  depend,  as  they  ought,  on  the  President,  and  the 
President  on  the  community.  The  chain  of  dependence  there- 
fore terminates  in  the  supreme  body,  namely,  in  the  people, 
who  will  possess,  besides,  in  aid  of  their  original  power,  the 
decisive  engine  of  impeachment.  Take  the  other  supposition; 
that  the  power  should  be  vested  in  the  Senate,  on  the  principle 
that  the  power  to  displace  is  necessarily  connected  with  the 
power  to  appoint.  It  is  declared  by  the  constitution,  that  we 
may  by  law  vest  the  appointment  of  inferior  officers  in  the 
heads  of  departments;  the  power  of  removal  being  incidental, 
as  stated  by  some  gentlemen.  Where  does  this  terminate?  If 
you  begin  with  the  subordinate  oflScers,  they  are  dependent  on 
their  superior,  he  on  the  next  superior,  and  he  on  —  whom? 
On  the  Senate,  a  permanent  body,  a  body,  by  its  particular 
mode  of  election,  in  reality  existing  forever;  a  body  possessing 
that  proportion  of  aristocratic  power  which  the  constitution 
no  doubt  thought  wise  to  be  established  in  the  system,  but 
which  some  have  strongly  excepted  against.  And  let  me  ask 
gentlemen,  is  there  equal  security  in  this  case  as  in  the  other? 
Shall  we  trust  the  Senate,  responsible  to  individual  Legisla- 
tures, rather  than  the  person  who  is  responsible  to  the  whole 
community?  It  is  true,  the  Senate  do  not  hold  their  offices  for 
life,  like  aristocracies  recorded  in  the  historic  page;  yet  the 
fact  is,  they  will  not  possess  that  responsibility  for  the  exercise 
of  Executive  powers  which  would  render  it  safe  for  us  to  vest 


APPOINTING  AND  REMOVING  POWER    175 

such  powers  in  them.  But  what  an  aspect  will  this  give  to  the 
Executive?  Instead  of  keeping  the  departments  of  Govern- 
ment distinct,  you  make  an  Executive  out  of  one  branch  of  the 
Legislature;  you  make  the  Executive  a  two-headed  monster, 
to  use  the  expression  of  the  gentleman  from  New  Hampshire, 
(Mr.  Livermore,)  you  destroy  the  great  principle  of  responsi- 
bility, and  perhaps  have  the  creature  divided  in  its  will,  de- 
feating the  very  purposes  for  which  a  unity  in  the  Executive 
was  instituted.  These  objections  do  not  lie  against  such  an 
arrangement  as  the  bill  establishes.  I  conceive  that  the  Presi- 
dent is  sufficiently  accountable  to  the  community ;  and  if  this 
power  is  vested  in  him,  it  will  be  vested  where  its  nature 
requires  it  should  be  vested;  if  any  thing  in  its  nature  is  exec- 
utive, it  must  be  that  power  which  is  employed  in  superintend- 
ing and  seeing  that  the  laws  are  faithfully  executed.  The  laws 
cannot  be  executed  but  by  officers  appointed  for  that  purpose; 
therefore,  those  who  are  over  such  officers  naturally  possess 
the  executive  power.  If  any  other  doctrine  be  admitted,  what 
is  the  consequence?  You  may  set  the  Senate  at  the  head  of  the 
executive  department,  or  you  may  require  that  the  officers 
hold  their  places  during  the  pleasure  of  this  branch  of  the 
Legislature,  if  you  cannot  go  so  far  as  to  say  we  shall  appoint 
them;  and  by  this  means,  you  link  together  two  branches  of 
the  Government  which  the  preservation  of  liberty  requires  to 
be  constantly  separated. 

Another  species  of  argument  has  been  urged  against  this 
clause.  It  is  said,  that  it  is  improper,  or  at  least  unnecessary, 
to  come  to  any  decision  on  this  subject.  It  has  been  said  by 
one  gentleman,  that  it  would  be  officious  in  this  branch  of  the 
Legislature  to  expound  the  constitution,  so  far  as  it  relates  to 
the  division  of  power  between  the  President  and  Senate;  it  is 
incontrovertibly  of  as  much  importance  to  this  branch  of  the 
Government  as  to  any  other,  that  the  constitution  should  be 
preserved  entire.  It  is  our  duty,  so  far  as  it  depends  upon  us,  to 
take  care  that  the  powers  of  the  constitution  be  preserved 
entire  to  every  department  of  Government;  the  breach  of  the 
constitution  in  one  point,  will  facilitate  the  breach  in  another; 


176        THE  FEDERAL  GOVERNMENT 

a  breach  in  this  point  may  destroy  that  equilibrium  by  which 
the  House  retains  its  consequence  and  share  of  power;  there- 
fore we  are  not  chargeable  with  an  officious  interference.  Be- 
sides, the  bill,  before  it  can  have  effect,  must  be  submitted  to 
both  those  branches  who  are  particularly  interested  in  it;  the 
Senate  may  negative,  or  the  President  may  object,  if  he  thmks 
it  unconstitutional. 

But  the  great  objection  drawn  from  the  source  to  which  the 
last  arguments  would  lead  us  is,  that  the  Legislature  itself 
has  no  right  to  expound  the  constitution;  that  wherever  its 
meaning  is  doubtful,  you  must  leave  it  to  take  its  course,  until 
the  Judiciary  is  called  upon  to  declare  its  meaning.  I  acknow- 
ledge, in  the  ordinary  course  of  Government,  that  the  exposi- 
tion of  the  laws  and  constitution  devolves  upon  the  Judiciary. 
But,  I  beg  to  know,  upon  what  principle  it  can  be  contended, 
that  any  one  department  draws  from  the  constitution  greater 
powers  than  another,  in  marking  out  the  limits  of  the  powers 
of  the  several  departments?  The  constitution  is  the  charter  of 
the  people  to  the  Government;  it  specifies  certain  great  powers 
as  absolutely  granted,  and  marks  out  the  departments  to 
exercise  them.  If  the  constitutional  boundary  of  either  be 
brought  into  question,  I  do  not  see  that  any  one  of  these  inde- 
pendent departments  has  more  right  than  another  to  declare 
their  sentiments  on  that  point. 

Perhaps  this  is  an  omitted  case.  There  is  not  one  Govern- 
ment on  the  face  of  the  earth,  so  far  as  I  recollect,  there  is  not 
one  in  the  United  States,  in  which  provision  is  made  for  a 
particular  authority  to  determine  the  limits  of  the  constitu- 
tional division  of  power  between  the  branches  of  the  Govern- 
ment. In  all  systems  there  are  points  which  must  be  adjusted 
by  the  departments  themselves,  to  which  no  one  of  them  is 
competent.  If  it  cannot  be  determined  in  this  way,  there  is  no 
resource  left  but  the  will  of  the  community,  to  be  collected  in 
some  mode  to  be  provided  by  the  constitution,  or  one  dictated 
by  the  necessity  of  the  case.  It  is  therefore  a  fair  question, 
whether  this  great  point  may  not  as  well  be  decided,  at  least 
by  the  whole  Legislature  as  by  a  part,  by  us  as  well  as  by  the 


APPOINTING  AND  REMOVING  POWER    177 

Executive  or  Judiciary?  As  I  think  it  will  be  equally  constitu- 
tional, I  cannot  imagine  it  will  be  less  safe,  that  the  exposition 
should  issue  from  the  legislative  authority  than  any  other;  and 
the  more  so,  because  it  involves  in  the  decision  the  opinions  of 
both  those  departments,  whose  powers  are  supposed  to  be 
affected  by  it.  Besides,  I  do  not  see  in  what  way  this  question 
could  come  before  the  judges,  to  obtain  a  fair  and  solemn 
decision;  but  even  if  it  were  the  case  that  it  could,  I  should 
suppose,  at  least  while  the  Government  is  not  led  by  passion, 
disturbed  by  faction,  or  deceived  by  any  discolored  medium 
of  sight,  but  while  there  is  a  desire  in  all  to  see  and  be  guided 
by  the  benignant  ray  of  truth,  that  the  decision  may  be  made 
with  the  most  advantage  by  the  Legislature  itself. 


CHAPTER  XX 

CONGRESS  AND  THE  TREASURY  DEPARTMENT 

"Nations  in  general,"  wrote  Hamilton  in  the  Federalist,  "even  under 
governments  of  the  most  popular  kind,  usually  commit  the  administra- 
tion of  their  finances  to  single  men  or  to  boards  composed  of  a  few  individ- 
uals, who  digest  and  prepare  in  the  first  instance  the  plans  of  taxation 
which  are  afterwards  passed  into  la-vs."  The  bill  to  establish  a  treasury 
department  was  drawn  in  accordance  with  these  ideas.  That  Hamilton 
would  be  the  first  incumbent  of  the  office  was  generally  taken  for  granted. 
His  well-known  partiality  for  British  institutions  may  have  caused  the 
misgivings  of  those  who  opposed  the  bill  in  its  first  form.  They  were  dis- 
inclined to  make  Alexander  Hamilton  an  American  chancellor  of  the 
exchequer.  A  comparison  of  the  act  establishing  the  Treasury  Depart- 
ment with  the  acts  creating  other  departments  indicates  that  a  direct 
responsibility  of  the  Secretary  to  Congress  was  expected.  The  want  of  an 
explicit  declaration  of  responsibility  caused  succeeding  incumbents  of  the 
office  much  embarrassment,  until  President  Jackson  established  the  prin- 
ciple of  presidential  direction  and  control. 

55.  Debate  on  the  Establishment  of  a  Secretaryship  of  Treasury} 

Mr.  Page  objected  to  the  words  making  it  the  duty  of  the 
Secretary  to  "digest  and  report  plans  for  the  improvement  and 
management  of  the  revenue,  and  the  support  of  the  public 
credit;"  observing  that  it  might  be  well  enough  to  enjoin  upon 
him  the  duty  of  making  out  and  preparing  estimates;  but  to  go 
any  further  would  be  dangerous  innovation  upon  the  constitu- 
tional privilege  of  this  House;  it  would  create  an  undue  influ- 
ence within  these  walls,  because  members  might  be  led,  by  the 
deference  commonly  paid  to  men  of  abilities,  who  give  an 
opinion  in  a  case  they  have  thoroughly  studied,  to  support 
the  minister's  plan,  even  against  their  own  judgment.  Nor 
would  the  mischief  stop  here;  it  would  establish  a  precedent 
which  might  be  extended,  until  we  admitted  all  the  ministers 
of  the  Government  on  the  floor,  to  explain  and  support  the 

1  House  of  Representatives,  June  25,  1789.  Annals  of  Congress,  r 
Cong.,  I  Sess.,  616-31  passim. 


CONGRESS  AND  THE  TREASURY      179 

plans  they  have  digested  and  reported :  thus  laying  a  founda- 
tion for  an  aristocracy  or  a  detestable  monarchy. 

Mr.  Tucker.  —  The  objection  made  by  the  gentleman  near 
me  is,  undoubtedly,  well  founded.  I  think  it  proper  to  strike 
out  all  the  words  alluded  to,  because  the  following  are  sufficient 
to  answer  every  valuable  purpose,  namely,  "to  prepare  and 
report  estimates  of  the  public  revenue  and  publicexpenditures." 
If  we  authorize  him  to  prepare  and  report  plans,  it  will  create 
an  interference  of  the  executive  with  the  legislative  powers;  it 
will  abridge  the  particular  privilege  of  this  House;  for  the  con- 
stitution expressly  declares,  that  all  bills  for  raising  revenue 
shall  originate  in  the  House  of  Representatives.  How  can  the 
business  originate  in  this  House,  if  we  have  it  reported  to  us 
by  the  Minister  of  Finance?  All  the  information  that  can  be 
required,  may  be  called  for,  without  adoptmg  a  clause  that 
may  undermine  the  authority  of  this  House,  and  the  security 
of  the  people.  The  constitution  has  pointed  out  the  proper 
method  of  communication  between  the  executive  and  legisla- 
tive departments;  it  is  made  the  duty  of  the  President  to  give, 
from  time  to  time,  information  to  Congress  of  the  state  of  the 
Union,  and  to  recommend  to  their  consideration  such  measures 
as  he  shall  judge  necessary  and  expedient.  If  revenue  plans 
are  to  be  prepared  and  reported  to  Congress,  here  is  the  proper 
person  to  do  it;  he  is  responsible  to  the  people  for  what  he 
recommends,  and  will  be  more  cautious  than  any  other  person 
to  whom  a  less  degree  of  responsibility  is  attached.  Under  this 
clause,  you  give  the  Secretary  of  the  Treasury  a  right  to 
obtrude  upon  you  plans,  not  only  undigested,  but  even  im- 
proper to  be  taken  up. 

I  hope  the  House  is  not  already  weary  of  executing  and  sus- 
taining the  powers  vested  in  them  by  the  constitution;  and  yet 
it  would  argue  that  we  thought  ourselves  less  adequate  to 
determine  than  any  individual  what  burthens  our  constituents 
are  equal  to  bear.  This  is  not  answering  the  high  expectations 
that  were  formed  of  our  exertions  for  the  general  good,  or  of 
our  vigilance  in  guarding  our  own  and  the  people's  rights.  In 
short,  Mr.  Chairman,  I  can  never  agree  to  have  money  bills 


i8o        THE  FEDERAL  GOVERNMENT 

originated  and  forced  upon  this  House  by  a  man  destitute  of 
legislative  authority;  while  the  constitution  gives  such  power 
solely  to  the  House  of  Representatives;  for  this  reason,  I 
cheerfully  second  the  motion  for  striking  out  the  words. 

Mr.  Page.  —  I  can  never  consent  to  establish,  by  law,  this 
interference  of  an  executive  ofl&cer  in  business  of  legislation;  it 
may  be  well  enough  in  an  absolute  monarchy,  for  a  minister 
to  come  to  a  Parliament  with  his  plans  in  his  hands,  and  order 
them  to  be  enregistered  or  enacted;  but  this  practice  does  not 
obtain  even  in  a  limited  monarchy  like  Britain.  The  minister 
there,  who  introduces  his  plans,  must  be  a  member  of  the  House 
of  Commons.  The  man  would  be  treated  with  indignation, 
who  should  attempt  in  that  country  to  bring  his  schemes  before 
Parliament  in  any  other  way.  Now,  why  we,  in  the  free  repub- 
lic of  the  United  States,  should  introduce  such  a  novelty  in 
legislation,  I  am  at  a  loss  to  conceive.  .  .  . 

Mr.  Ames.  —  It  has  been  complained  of  as  a  novelty;  but, 
let  me  ask  gentlemen,  if  it  is  not  to  an  institution  of  a  similar 
kind  that  the  management  of  the  finances  of  Britain  is  the  envy 
of  the  world?  It  is  true,  the  Chancellor  of  the  Exchequer  is  a 
member  of  the  House  that  has  the  sole  right  of  originating 
money  bills;  but  is  that  a  reason  why  we  should  not  have  the 
information  which  can  be  obtained  from  our  officer,  who  pos- 
sesses the  means  of  acquiring  equally  important  and  useful 
knowledge?  The  nation,  as  well  as  the  Parliament  of  Britain, 
holds  a  check  over  the  Chancellor:  if  his  budget  contains  false 
calculations,  they  are  corrected;  if  he  attempts  impositions, 
or  even  unpopular  measures,  his  administration  becomes 
odious,  and  he  is  removed.  Have  we  more  reason  to  fear  than 
they?  Have  we  less  responsibility  or  security  in  our  arrange- 
ment of  the  Treasury  department?  If  we  have,  let  us  improve 
it,  but  not  abridge  it  of  its  safest  and  most  useful  power.  I 
hope  the  committee  will  refuse  their  approbation  of  the  present 
motion. 

Mr.  SedgAvick.  —  If  the  principle  prevails  for  curtaihng 
this  part  of  the  Secretary's  duty,  we  shall  lose  the  advantages 
which  the  proposed  system  was  intended  to  acquire.  The  im- 


CONGRESS  AND  THE  TREASURY       i8i 

provement  and  management  of  the  revenue  is  a  subject  that 
must  be  investigated  by  a  man  of  abilities  and  indefatigable 
industry,  if  we  mean  to  have  our  business  advantageously  done. 
If  honorable  gentlemen  will  for  a  moment  consider  the  peculiar 
circumstances  of  this  country,  the  means  of  information  attain- 
able by  the  individual  members  of  this  House,  and  compare 
them  with  the  object  they  have  to  pursue,  they  will  plainly 
perceive  the  necessity  of  calling  to  their  aid  the  advantages 
resulting  from  an  establishment  like  the  one  contemplated  in 
the  bill;  if  they  weigh  these  circumstances  carefully,  their 
objections,  I  trust,  will  vanish.  Coming,  Mr.  Chairman,  as  we 
do,  from  different  parts  of  the  Union,  from  States  where  the 
objects  of  revenue  are  different,  where  the  circumstances  and 
views  of  the  people  are  different,  and  in  a  great  degree  local, 
it  appears  to  me  that  no  one  member  can  be  so  fortunate  as 
to  possess  the  extensive  knowledge  attainable  by  this  officer. 
Another  circumstance  induces  me  to  draw  the  same  conclusion. 
We  shall  find  systems  adopted  to  defeat  the  collection  of  the 
revenue,  but  it  will  be  impossible  for  any  of  us  to  become  so 
well  acquainted  with  these  machinations  as  to  defeat  their 
object;  but  from  the  advantageous  position  we  give  the  Sec- 
retary of  the  Treasury,  and  the  multifarious  objects  of  his  atten- 
tion, he  may  watch  over  and  detect  their  plans;  he  will  have  a 
better  capacity  to  propose  a  remedy  than  any  member  of  the 
Legislature. 

I  do  not  apprehend  any  undue  influence  operating  on  the 
members  of  this  House,  because  I  am  persuaded  there  will  ever 
prevail  an  independent  and  indignant  spirit  within  the  walls  of 
Congress,  hostile  to  every  venal  attempt.  Nor  do  I  believe  it 
possible  to  color,  with  a  semblance  of  justice,  either  false  or 
base  measures  against  the  public  welfare;  the  wisdom  of  this 
House  can  never  be  thought  so  meanly  of.  I  trust  a  majority 
will  always  be  found  wise  and  virtuous  enough  to  resist  being 
made  the  tools  of  a  corrupt  administration.  I,  therefore,  with 
confidence,  approve  the  object  of  the  clause. 

I  will  mention  one  other  circumstance,  of  no  inconsiderable 
force,  in  favor  of  the  bill.   Coming,  as  I  said  we  do,  from  dis- 


i82        THE  FEDERAL  GOVERNMENT 

tricts  with  different  ideas,  perhaps  different  objects  to  pursue, 
much  time  will  necessarily  be  consumed  before  a  current  is 
found  in  which  the  mind  of  the  majority  will  run;  and  even 
then,  gentlemen  will  not  be  certain  they  have  procured  all  the 
information  that  could  be  obtained.  It  appears,  therefore,  to 
me,  from  the  reason  and  nature  of  things,  to  be  our  duty,  as 
wise  legislators,  to  form  such  a  reservoir  for  information  as  will 
supply  us  with  what  is  necessary  and  useful  at  all  times. 

Mr.  Boudinot.  —  A  proper  jealousy  for  the  liberty  of  the 
people  is  commendable  in  those  who  are  appointed  and  sworn 
to  be  its  faithful  guardians;  but  when  this  spirit  is  carried  so 
far  as  to  lose  sight  of  its  object,  and  instead  of  leading  to  avoid, 
urges  on  to  the  precipice  of  ruin,  we  ought  to  be  careful  how  we 
receive  its  impressions.  So  far  is  the  present  measure  from 
being  injurious  to  liberty,  that  it  is  consistent  with  the  true 
interest  and  prosperity  of  the  community.  Are  gentlemen 
apprehensive  we  shall  be  led  by  this  officer  to  adopt  plans  we 
should  otherwise  reject?  For  my  part,  I  have  a  better  opinion 
of  the  penetration  of  the  representation  of  the  people  than  to 
dread  any  such  visionary  phantom. 

Let  us  consider  whether  this  power  is  essentially  necessary 
to  the  Government.  I  take  it  to  be  conceded  by  the  gentlemen, 
that  it  is  absolutely  so.  They  say  they  are  willing  to  receive  the 
information  because  it  may  be  serviceable,  but  do  not  choose 
to  have  it  communicated  in  this  way.  If  the  Secretary  of  the 
Treasury  is  the  proper  person  to  give  the  information,  I  can 
see  no  other  mode  of  obtaining  it  that  would  be  so  useful.  Do 
gentlemen  mean  that  he  shall  give  it  piecemeal,  by  way  of 
question  and  answer?  This  will  tend  more  to  mislead  than  to 
inform  us.  If  we  would  judge  upon  any  subject,  it  would  be 
better  to  have  it  in  one  clear  and  complete  view,  than  to  inspect 
it  by  detachments;  we  should  lose  the  great  whole  in  the 
minutiae,  and,  instead  of  a  system,  should  present  our  con- 
stituents with  a  structure  composed  of  discordant  parts, 
counteracting  and  defeating  the  operation  of  each  other's 
properties. 

Make  your  officer  responsible,  and  the  presumption  is,  that 


CONGRESS  AND  THE  TREASURY      183 

plans  and  information  are  properly  digested;  but  if  he  can 
secrete  himself  behind  the  curtain,  he  might  create  a  noxious 
influence,  and  not  be  answerable  for  the  information  he  gives. 
I  conceive  this  great  principle  of  responsibility  to  be  essentially 
necessary  to  secure  the  public  welfare:  make  it  his  duty  to 
study  the  subject  well,  and  put  the  means  in  his  power ;  we  can 
then  draw  from  him  all  the  information  he  has  acquired,  and 
apply  it  to  its  proper  use.  Without  such  an  officer,  our  plans 
will  be  ineffectual  and  inconsistent.  I  have  seen  too  much  the 
want  of  a  like  officer  in  the  State  Legislatures,  not  to  make  me 
very  desirous  of  adopting  the  present  plan.  It  has  been  said, 
that  the  members  coming  from  the  different  parts  of  the  Union 
are  the  most  proper  persons  to  give  information.  I  deny  the 
principle.  There  are  no  persons  in  the  Government  to  whom 
we  could  look  with  less  propriety  for  information  on  this  sub- 
ject than  to  the  members  of  this  House.  We  are  called  from 
the  pursuit  of  our  different  occupations,  and  come  without 
the  least  preparation  to  bring  forward  a  subject  that  requires 
a  great  degree  of  assiduous  application  to  understand;  add  to 
this  the  locality  of  our  ideas,  which  is  too  commonly  the  case, 
and  we  shall  appear  not  very  fit  to  answer  the  end  of  our 
appointment.  Witness  the  difficulty  and  embarrassments  with 
which  we  have  hitherto  been  surrounded.  If  we  had  the  subject 
digested  and  prepared,  we  should  determine  with  ease  on  its 
fitness,  its  combination,  and  its  principles,  and  might  supply 
omissions  or  defects  without  hazard;  and  this  in  half  the  time 
we  could  frame  a  system,  if  left  to  reduce  the  chaos  into  order. 

Mr.  Gerry  expressed  himself  in  favor  of  the  object  of  the 
clause;  that  was,  to  get  all  the  information  possible  for  the 
purpose  of  improving  the  revenue,  because  he  thought  this 
information  would  be  much  required,  if  he  judged  from  the 
load  of  public  debt,  and  the  present  inability  of  the  people  to 
contribute  largely  toward  its  reduction. 

He  could  not  help  observing,  however,  the  great  degree  of 
importance  they  were  giving  this,  and  the  other  executive 
officers.  If  the  doctrine  of  having  prime  and  great  ministers  of 
state  was  once  well  established,  he  did  not  doubt  but  we  should 


i84        THE  FEDERAL  GOVERNMENT 

soon  see  them  distinguished  by  a  green  or  red  ribbon,  or  other 
insignia  of  court  favor  and  patronage.  He  wished  gentlemen 
were  aware  of  what  consequences  these  things  lead  to,  that 
they  might  exert  a  greater  degree  of  caution. 

The  practice  of  Parliament  in  Britain  is  first  to  determine 
the  sum  they  will  grant,  and  then  refer  the  subject  to  a  Com- 
mittee of  Ways  and  Means;  this  might  be  a  proper  mode  to  be 
pursued  in  this  House. 

Do  gentlemen,  said  he,  consider  the  importance  of  the  power 
they  give  the  officer  by  the  clause?  Is  it  not  part  of  our  legis- 
lative authority?  And  does  not  the  constitution  expressly 
declare  that  the  House  solely  shall  exercise  the  power  of  origin- 
ating revenue  bills?  Now,  what  is  meant  by  reporting  plans  ? 
It  surely  includes  the  idea  of  originating  money  bills,  that  is,  a 
bill  for  improving  the  revenue,  or,  in  other  words,  for  bringing 
revenue  into  the  treasury.  For  if  he  is  to  report  plans,  they 
ought  to  be  reported  in  a  proper  form,  and  complete.  This  is 
giving  an  indirect  voice  in  legislative  business  to  an  executive 
officer.  .  .  . 

Mr.  Page's  motion  for  striking  out  the  clause  being  put  and 
negatived : 

The  question  on  Mr.  Fitzsimons's  motion  to  amend  the  bill, 
by  striking  out  the  word  report,  and  inserting  prepare,  was 
taken  and  carried  by  a  great  majority. 

56.  Power  of  the  House  over  Heads  of  Departments} 

Mar.  31  [1792].  A  meeting  at  the  P[resident]'s,  present  Th: 
J.[efferson],  A.  H.[amilton],  H.  K.[nox],  &  E.  R.[andolph].  The 
subject  was  the  resoln  of  the  H,  of  Repr.  of  Mar.  27.  to  appt  a 
commee  to  inquire  into  the  causes  of  the  failure  of  the  late 
expdn  under  Maj.  Genl.  St.  Clair  with  power  to  call  for  such 
persons,  papers  &  records  as  may  be  necessary  to  assist  their 
inquiries.  The  commee  had  written  to  Knox  for  the  original 
letters,  instns,  &c.  The  President  he  had  called  us  to  consult, 
merely  because  it  was  the  first  example,  &  he  wished  that  so  far 
as  it  shd  become  a  precedent,  it  should  be  rightly  conducted. 
1  Jefferson's  Anas.  Writings  of  Thomas  Jefferson  (Ford  ed.),  i,  189-90. 


CONGRESS  AND  THE  TREASURY     185 

He  neither  acknowledged  nor  denied,  nor  even  doubted  the 
propriety  of  what  the  house  were  doing,  for  he  had  not  thought 
upon  it,  nor  was  acquainted  with  subjects  of  this  kind.  He 
could  readily  conceive  there  might  be  papers  of  so  secret  a 
nature  as  that  they  ought  not  to  be  given  up.  —  We  were  not 
prepared  &  wished  time  to  think  &  enquire. 

Apr.  2.  Met  again  at  P's  on  same  subject.  We  had  all  con- 
sidered and  were  of  one  mind  i .  that  the  house  was  an  inquest, 
&  therefore  might  institute  inquiries.  2.  that  they  might  call 
for  papers  generally.  3.  that  the  Executive  ought  to  communi- 
cate such  papers  as  the  public  good  would  permit,  &  ought  to 
refuse  those  the  disclosure  of  which  would  injure  the  public. 
Consequently  were  to  exercise  a  discretion.  4.  that  neither  the 
commee  nor  House  had  the  right  to  call  on  the  head  of  a 
deptmt,  who  &  whose  papers  were  under  the  Presidt.  alone, 
but  that  the  commee  shd  instruct  their  chairman  to  move  the 
house  to  address  the  President.  .  .  .  Hamilt.  agrd  with  us  in 
all  these  points  except  as  to  the  power  of  the  house  to  call  on 
heads  of  departmts.  He  observed  that  as  to  his  departmt  the 
act  constituting  it  had  made  it  subject  to  Congress  in  some 
points,  but  he  thot  himself  not  so  far  subject  as  to  be  obliged 
to  produce  all  papers  they  might  call  for.  They  might  demand 
secrets  of  a  very  mischievous  nature.  Here  I  thot  he  began  to 
fear  they  would  go  to  examining  how  far  their  own  members 
&  other  persons  in  the  govmt  had  been  dabbling  in  stocks, 
banks  &c.,  and  that  he  probably  would  choose  in  this  case  to 
deny  their  power  &  in  short  he  endeavd.  to  place  himself  sub- 
ject to  the  house  when  the  Executive  should  propose  what  he 
should  not  like,  &  subject  to  the  Executive,  when  the  house 
shd  propose  anything  disagreeable.  I  observed  here  a  differ- 
ence between  the  Brit  pari  &  our  Congress,  that  the  former 
was  a  legislature,  an  inquest,  &  a  council  for  the  king.  The 
latter  was  by  the  constn  a  legislature  &  an  inquest  but  not  a 
council.  Finally  agreed  to  speak  separation  [sic]  to  the  mem- 
bers of  the  commee  &  bring  them  by  persuasion  into  the  right 
channel.  It  was  agreed  in  this  case  that  there  was  not  a  paper 
which  might  not  be  properly  produced,  that  copies  only  should 


i86        ^fflE  FEDERAL  GOVERNMENT 

be  sent,  with  an  assurance  that  if  they  should  desire  it,  a  clerk 
should  attend  with  the  originals  to  be  verified  by  them- 
selves. .  .  . 

57.  Reports  of  the  Secretary  of  Treasury} 

...  By  the  law  constituting  the  Treasury  Department,  it  is 
enacted  that  the  Secretary  shall  lay  before  Congress  or  either 
House  such  reports,  documents,  &c.,  as  he  may  be  directed 
from  time  to  time.  Hence  the  invariable  practice  has  been  to 
call  for  financial  information  directly  on  the  Treasury  Depart- 
ment, except  in  the  case  of  loans,  where  the  authority  had  been 
given  by  the  President;  and  for  information  respecting  Army, 
Navy,  or  State  Department,  the  application  is  always  to  the 
President,  requesting  him  to  direct,  &c.  The  distinction,  it  is 
presumable,  has  been  made  in  order  to  leave  Congress  a  direct 
power,  uncontrolled  by  the  Executive,  on  financial  documents 
and  information  as  connected  with  money  and  revenue  sub- 
jects. It  would  at  present  be  much  more  convenient  to  follow 
a  different  course ;  if  instead  of  six  or  seven  reports  called  for  by 
tlie  standing  orders  of  one  or  the  other  House,  I  could  throw 
them  all  into  one,  to  be  made  to  you,  it  would  unite  the  advan- 
tages of  simpHcity  and  perspicuity  to  that  of  connection  with 
the  reports  made  by  the  other  Departments,  as  all  might  then 
be  presented  to  Congress  through  you  and  by  you;  but  I  fear 
that  it  would  be  attacked  as  an  attempt  to  dispense  with  the 
orders  of  the  Houses  or  of  Congress  if  the  usual  reports  were 
not  made  in  the  usual  manner  to  them;  and  if  these  are  still 
made,  it  becomes  useless  for  you  to  communicate  dupHcates. 
.  .  .  Quere,  whether  this  remarkable  distinction,  which  will  be 
found  to  pervade  all  the  laws  relative  to  the  Treasury  Depart- 
ment, was  not  introduced  to  that  extent  in  order  to  give  to  Mr. 
Hamilton  a  department  independent  of  every  executive  con- 
trol? It  may  be  remembered  that  he  claimed  under  those  laws 
the  right  of  making  reports  and  proposing  reforms,  &c.,  with- 
out being  called  on  for  the  same  by  Congress.    This  was  a 

'  Gallatin  to  Jefferson,  November,  1801.  Henry  Adams,  Writings  of 
Albert  Gallatin,  i,  66-67. 


CONGRESS  AND  THE  TREASURY       187 

Presidential  power,  for  by  the  Constitution  the  President  is  to 
call  on  the  Departments  for  information,  and  has  alone  the 
power  of  recommending.  But  in  the  present  case,  see  the  Act 
supplementary  to  the  Act  establishing  the  Treasury  Depart- 
ment, passed  in  1800. 


CHAPTER  XXI 

THE   WHISKEY   INSURRECTION 

The  extreme  concern  with  which  the  administration  viewed  the  resist- 
ance of  western  Pennsylvania  to  the  excise  is  expressed  without  reserve 
in  the  letters  which  passed  between  the  President  and  his  Secretary  of  the 
Treasury.  As  administrative  head  of  the  revenue  officers,  Hamilton  had 
information  which  led  him  to  fear  lest  the  local  disorders  might  assume 
the  proportions  of  a  rebellion.  In  that  event,  he  thought  public  opinion 
quite  as  likely  to  support  the  rebels  as  to  rally  to  the  aid  of  the  Federal 
Government.  The  Federal  Government,  indeed,  seemed  to  be  on  trial. 
The  scrupulous  care  of  the  President  to  use  the  military  only  as  an  ad- 
junct to  the  civil  authorities,  appears  both  in  his  proclamations  and  in  the 
instructions  conveyed  by  Hamilton  to  Governor  Lee. 

58.  Proclamation  of  August  7,  1794} 

Whereas  combinations  to  defeat  the  execution  of  the  laws 
laying  duties  upon  spirits  distilled  within  the  United  States 
and  upon  stills  have  from  the  time  of  the  commencement  of 
those  laws  existed  in  some  of  the  western  parts  of  Pennsylvania; 
and 

Whereas  the  said  combinations,  proceeding  in  a  manner 
subversive  equally  of  the  just  authority  of  government  and 
of  the  rights  of  individuals,  have  hitherto  effected  their  danger-, 
ous  and  criminal  purpose  by  the  influence  of  certain  irregular 
meetings  whose  proceedings  have  tended  to  encourage  and  up- 
hold the  spirit  of  opposition  by  misrepresentations  of  the  laws 
calculated  to  render  them  odious;  by  endeavors  to  deter  those 
who  might  be  so  disposed  from  accepting  offices  under  them 
through  fear  of  public  resentment  and  of  injury  to  person  and 
property,  and  to  compel  those  who  had  accepted  such  offices 
by  actual  violence  to  surrender  or  forbear  the  execution  of 
them ;  by  circulating  vindictive  menaces  against  all  those  who 
should  otherwise,  directly  or  indirectly,  aid  in  the  execution 
of  the  said  laws,  or  who,  yielding  to  the  dictates  of  conscience 
^  Richardson,  Messages  and  Papers  oj  the  Presidents,  I,  158-60. 


THE  WHISKEY  INSURRECTION        189 

and  to  a  sense  of  obligation,  should  themselves  comply  there- 
with ;  by  actually  injuring  and  destroying  the  property  of  per- 
sons who  were  understood  to  have  so  complied;  by  inflicting 
cruel  and  humiliating  punishments  upon  private  citizens  for 
no  other  cause  than  that  of  appearing  to  be  the  friends  of  the 
laws;  by  intercepting  the  public  officers  on  the  highways,  abus- 
ing, assaulting,  and  otherwise  ill  treating  them;  by  going  to 
their  houses  in  the  night,  gaining  admittance  by  force,  taking 
away  their  papers,  and  committing  other  outrages,  employing 
for  these  unwarrantable  purposes  the  agency  of  armed  banditti 
disguised  in  such  manner  as  for  the  most  part  to  escape  dis- 
covery; and 

Whereas  the  endeavors  of  the  Legislature  to  obviate  objec- 
tions to  the  said  laws  by  lowering  the  duties  and  by  other  alter- 
ations conducive  to  the  convenience  of  those  whom  they 
immediately  affect  (though  they  have  given  satisfaction  in 
other  quarters),  and  the  endeavors  of  the  executive  officers  to 
conciliate  a  compliance  with  the  laws  by  explanations,  by  for- 
bearance, and  even  by  particular  accommodations  founded  on 
the  suggestion  of  local  considerations,  have  been  disappointed 
of  their  effect  by  the  machinations  of  persons  whose  industry 
to  excite  resistance  has  increased  with  every  appearance  of  a 
disposition  among  the  people  to  relax  in  their  opposition  and 
to  acquiesce  in  the  laws,  insomuch  that  many  persons  in  the 
said  western  parts  of  Pennsylvania  have  at  length  been  hardy 
enough  to  perpetrate  acts  which  I  am  advised  amount  to  trea- 
son, being  overt  acts  of  levying  war  against  the  United  States, 
the  said  persons  having  on  the  i6th  and  17th  July  last  past 
proceeded  in  arms  (on  the  second  day  amounting  to  several 
hundreds)  to  the  house  of  John  Neville,  inspector  of  the  reve- 
nue for  the  fourth  survey  of  the  district  of  Pennsylvania; 
having  repeatedly  attacked  the  said  house  with  the  persons 
therein,  wounding  some  of  them;  having  seized  David  Lenox, 
marshal  of  the  district  of  Pennsylvania,  who  previous  thereto 
had  been  fired  upon  while  in  the  execution  of  his  duty  by  a 
party  of  armed  men,  detaining  him  for  some  time  prisoner, 
till  for  the  preservation  of  his  life  and  the  obtaining  of  his 


I90        THE  FEDERAL  GOVERNMENT 

liberty  he  found  it  necessary  to  enter  into  stipulations  to  for- 
bear the  execution  of  certain  official  duties  touching  processes 
issuing  out  of  a  court  of  the  United  States;  and  having  finally 
obliged  the  said  inspector  of  the  said  revenue  and  the  said  mar- 
shal from  considerations  of  personal  safety  to  fly  from  that 
part  of  the  country,  in  order,  by  a  circuitous  route,  to  proceed 
to  the  seat  of  Government,  avowing  as  the  motives  of  these 
outrageous  proceedings  an  intention  to  prevent  by  force  of 
arms  the  execution  of  the  said  laws,  to  oblige  the  said  inspector 
of  the  revenue  to  renounce  his  said  office,  to  withstand  by  open 
violence  the  lawful  authority  of  the  Government  of  the  United 
States,  and  to  compel  thereby  an  alteration  in  the  measures  of 
the  Legislature  and  a  repeal  of  the  laws  aforesaid ;  and 

Whereas  by  a  law  of  the  United  States  entitled  "An  act  to 
provide  for  calHng  forth  the  militia  to  execute  the  laws  of 
the  Union,  suppress  insurrections,  and  repel  invasions,"  it  is 
enacted  "that  whenever  the  laws  of  the  United  States  shall  be 
opposed  or  the  execution  thereof  obstructed  in  any  State  by 
combinations  too  powerful  to  be  suppressed  by  the  ordinary 
course  of  judicial  proceedings  or  by  the  powers  vested  in  the 
marshals  by  that  act,  the  same  being  notified  by  an  associate 
justice  or  the  district  judge,  it  shall  be  lawful  for  the  President 
of  the  United  States  to  call  forth  the  militia  of  such  State  to 
suppress  such  combinations  and  to  cause  the  laws  to  be  duly 
executed.  And  if  the  militia  of  a  State  where  such  combina- 
tions may  happen  shall  refuse  or  be  insufficient  to  suppress 
the  same,  it  shall  be  lawful  for  the  President,  if  the  Legislature 
of  the  United  States  shall  not  be  in  session,  to  call  forth  and 
employ  such  numbers  of  the  militia  of  any  other  State  or 
States  most  convenient  thereto  as  may  be  necessary;  and  the 
use  of  the  militia  so  to  be  called  forth  may  be  continued,  if 
necessary,  until  the  expiration  of  thirty  days  after  the  com- 
mencement of  the  ensuing  session:  Provided  always,  That 
whenever  it  may  be  necessary  in  the  judgment  of  the  President 
to  use  the  military  force  hereby  directed  to  be  called  forth, 
the  President  shall  forthwith,  and  previous  thereto,  by  pro- 
clamation, command  such  insurgents  to  disperse  and  retire 


THE  WHISKEY  INSURRECTION        191 

peaceably  to  their  respective  abodes  within  a  limited  time," 

and 

Whereas  James  Wilson,  an  associate  justice,  on  the  4th 
instant,  by  writing  under  his  hand,  did  from  evidence  which 
had  been  laid  before  him  notify  to  me  that  "in  the  counties 
of  Washington  and  Allegany,  in  Pennsylvania,  laws  of  the 
United  States  are  opposed  and  the  execution  thereof  obstructed 
by  combinations  too  powerful  to  be  suppressed  by  the  ordinary 
course  of  judicial  proceedings  or  by  the  powers  vested  in  the 
marshal  of  that  district;"  and 

Whereas  it  is  in  my  judgment  necessary  under  the  circum- 
stances of  the  case  to  take  measures  for  calling  forth  the  mihtia 
in  order  to  suppress  the  combinations  aforesaid,  and  to  cause 
the  laws  to  be  duly  executed;  and  I  have  accordingly  deter- 
mined so  to  do,  feeling  the  deepest  regret  for  the  occasion,  but 
withal  the  most  solemn  conviction  that  the  essential  interests 
of  the  Union  demand  it,  that  the  very  existence  of  Govern- 
ment and  the  fundamental  principles  of  social  order  are  materi- 
ally involved  in  the  issue,  and  that  the  patriotism  and  firmness 
of  all  good  citizens  are  seriously  called  upon,  as  occasions  may 
require,  to  aid  in  the  effectual  suppression  of  so  fatal  a  spirit: 
Wherefore,  and  in  pursuance  of  the  proviso  above  recited,  I, 
George  Washington,  President  of  the  United  States,  do  hereby 
command  all  persons  being  insurgents  as  aforesaid,  and  all 
others  whom  it  may  concern,  on  or  before  the  ist  day  of  Sep- 
tember next  to  disperse  and  retire  peaceably  to  their  respec- 
tive abodes.  And  I  do  moreover  warn  all  persons  whomsoever 
against  aiding,  abetting,  or  comforting  the  perpetrators  of  the 
aforesaid  treasonable  acts,  and  do  require  all  officers  and  other 
citizens,  according  to  their  respective  duties  and  the  laws  of  the 
land,  to  exert  their  utmost  endeavors  to  prevent  and  suppress 
such  dangerous  proceedings.  .  .  . 

59.  Proclamation  of  September  25^  1794-^ 

Whereas  from  a  hope  that  the  combinations  against  the  Con- 
stitution and  laws  of  the  United  States  in  certain  of  the  western 
*  Richardson,  Messages  and  Papers  of  the  Presidents,  i,  161-62. 


192        THE  FEDERAL  GOVERNMENT 

counties  of  Pennsylvania  would  yield  to  time  and  reflection 
I  thought  it  sufficient  in  the  first  instance  rather  to  take  meas- 
ures for  calling  forth  the  militia  than  immediately  to  embody 
them,  but  the  moment  is  now  come  when  the  overtures  of  for- 
giveness, with  no  other  condition  than  a  submission  to  law, 
have  been  only  partially  accepted;  when  every  form  of  concili- 
ation not  inconsistent  with  the  being  of  Government  has  been 
adopted  without  effect;  when  the  well-disposed  in  those  coun- 
ties are  unable  by  their  influence  and  example  to  reclaim  the 
wicked  from  their  fury,  and  are  compelled  to  associate  in  their 
own  defense;  when  the  proffered  lenity  has  been  perversely 
misinterpreted  into  an  apprehension  that  the  citizens  will 
march  with  reluctance;  when  the  opportunity  of  examining 
the  serious  consequences  of  a  treasonable  opposition  has  been 
employed  in  propagating  principles  of  anarchy,  endeavoring 
through  emissaries  to  alienate  the  friends  of  order  from  its 
support,  and  inviting  its  enemies  to  perpetrate  similar  acts  of 
insurrection ;  when  it  is  manifest  that  violence  would  continue 
to  be  exercised  upon  every  attempt  to  enforce  the  laws;  when, 
therefore,  Government  is  set  at  defiance,  the  contest  being 
whether  a  small  portion  of  the  United  States  shall  dictate  to 
the  whole  Union,  and,  at  the  expense  of  those  who  desire  peace, 
indulge  a  desperate  ambition: 

Now,  therefore,  I,  George  Washington,  President  of  the 
United  States,  in  obedience  to  that  high  and  irresistible  duty 
consigned  to  me  by  the  Constitution  ''to  take  care  that  the 
laws  be  faithfully  executed,"  deploring  that  the  American 
name  should  be  sullied  by  the  outrages  of  citizens  on  their 
own  Government,  commiserating  such  as  remain  obstinate 
from  delusion,  but  resolved,  in  perfect  reliance  on  that  gracious 
Providence  which  so  signally  displays  its  goodness  towards 
this  country,  to  reduce  the  refractory  to  a  due  subordination 
to  the  law,  do  hereby  declare  and  make  known  that,  with  a 
satisfaction  which  can  be  equaled  only  by  the  merits  of  the 
militia  summoned  into  service  from  the  States  of  New  Jersey, 
Pennsylvania,  Maryland,  and  Virginia,  I  have  received  intelli- 
gence of  their  patriotic  alacrity  in  obeying  the  call  of  the 


THE  WHISKEY  INSURRECTION        193 

present,  though  painful,  yet  commanding  necessity;  that  a 
force  which,  according  to  every  reasonable  expectation,  is 
adequate  to  the  exigency  is  already  in  motion  to  the  scene  of 
disaffection;  that  those  who  have  confided  or  shall  confide  in 
the  protection  of  Government  shall  meet  full  succor  under  the 
standard  and  from  the  arms  of  the  United  States;  that  those 
who,  having  offended  against  the  laws,  have  since  entitled  them- 
selves to  indemnity  will  be  treated  with  the  most  liberal  good 
faith  if  they  shall  not  have  forfeited  their  claim  by  any  subse- 
quent conduct,  and  that  instructions  are  given  accordingly. 

And  I  do  moreover  exhort  all  individuals,  ofi&cers,  and  bodies 
of  men  to  contemplate  with  abhorrence  the  measures  leading 
directly  or  indirectly  to  those  crimes  which  produce  this  resort 
to  military  coercion;  to  check  in  their  respective  spheres  the 
efforts  of  misguided  or  designing  men  to  substitute  their  mis- 
representation in  the  place  of  truth  and  their  discontents  in 
the  place  of  stable  government,  and  to  call  to  mind  that,  as  the 
people  of  the  United  States  have  been  permitted,  under  the 
Divine  favor,  in  perfect  freedom,  after  solemn  deliberation, 
and  in  an  enlightened  age,  to  elect  their  own  government,  so 
will  their  gratitude  for  this  inestimable  blessing  be  best  dis- 
tinguished by  firm  exertions  to  maintain  the  Constitution  and 
the  laws. 

And,  lastly,  I  again  warn  all  persons  whomsoever  and  where- 
soever not  to  abet,  aid,  or  comfort  the  insurgents  aforesaid,  as 
they  will  answer  the  contrary  at  their  peril;  and  I  do  also 
require  all  officers  and  other  citizens,  according  to  their  several 
duties,  as  far  as  may  be  in  their  power,  to  bring  under  the 
cognizance  of  the  laws  all  offenders  in  the  premises.  .  .  . 

60.  Instructions  to  Governor  Lee} 

"Bedford,  20th  October,  1794. 

"Sir:  —  I  have  it  in  special  instruction  from  the  President 
of  the  United  States,  now  at  this  place,  to  convey  to  you,  on 
his  behalf,  the  following  instructions,  for  the  general  direction 

*  Brackenridge,  History  of  the  Western  Insurrection,  283-85. 


194        THE  FEDERAL  GOVERNMENT 

of  your  conduct,  in  command  of  the  militia  army,  with  which 
you  are  charged.  ... 

"The  objects  of  the  military  force  are  two-fold: 

"  I.  To  overcome  any  armed  opposition  which  may  exist. 

"2.  To  countenance  and  support  the  civil  officers  in  the 
means  of  executing  the  laws. 

"With  a  view  to  the  first  of  these  two  objects,  you  may 
proceed  as  speadily  as  may  be  with  the  army  under  your  com- 
mand, into  the  insurgent  counties,  to  attack,  and  as  far  as 
shall  be  in  your  power,  subdue  all  persons  whom  you  may 
find  in  arms,  in  opposition  to  the  laws  above  mentioned.  You 
will  march  your  army  in  two  columns,  from  the  places  where 
they  are  now  assembled,  by  the  most  convenient  routes,  having 
regard  to  the  nature  of  the  roads,  the  convenience  of  supply, 
and  the  facility  of  cooperation  and  union,  and  bearing  in  mind 
that  you  ought  to  act  until  the  contrary  shall  be  fully  devel- 
oped, on  the  general  principle  of  having  to  contend  with  the 
whole  force  of  the  counties  of  Fayette,  Westmoreland,  Wash- 
ington and  Allegheny,  and  of  that  part  of  Bedford  which  lies 
westward  of  the  town  of  Bedford;  and  that  you  are  to  put  as 
little  as  possible  to  hazard.  .  .  . 

"When  arrived  within  the  insurgent  country,  if  an  armed 
opposition  appear,  it  may  be  proper  to  publish  a  proclamation 
inviting  all  good  citizens,  friends  to  the  constitution  and  laws, 
to  join  the  standard  of  the  United  States.  If  no  armed  opposi- 
tion exist,  it  may  still  be  proper  to  publish  a  proclamation, 
exhorting  to  a  peaceful  and  dutiful  demeanor,  and  giving 
assurances  of  performing,  with  good  faith  and  HberaHty,  what- 
soever may  have  been  promised  by  the  commissioners,  to 
those  who  have  complied  with  the  conditions  prescribed  by 
them,  and  who  have  not  forfeited  their  title  by  subsequent 
misdemeanor. 

"Of  these  persons  in  arms,  if  any,  whom  you  may  make 
prisoners;  leaders,  including  all  persons  in  command,  are  to  be 
delivered  to  the  civil  magistrates;  the  rest  to  be  disarmed, 
admonished,  and  sent  home,  (except  such  as  may  have  been 
particularly  violent,  and  also  influential,)  causing  their  own 


THE  WHISKEY  INSURRECTION        195 

recognizances  for  their  good  behavior  to  be  taken,  in  the  cases 
which  it  may  be  deemed  expedient. 

"With  a  view  to  the  second  point,  namely,  the  countenance 
and  support  of  the  civil  officers  in  the  means  of  executing  their 
laws :  you  will  make  such  dispensations  as  shall  appear  proper, 
to  countenance  and  protect,  and  if  necessary,  and  required  by 
them,  to  support  and  aid  the  civil  officers  in  the  execution  of 
their  respective  duties;  for  bringing  offenders  and  delinquents 
to  justice;  for  seizing  the  stills  of  delinquent  distillers,  as  far 
as  the  same  shall  be  deemed  eligible  by  the  supervisor  of  the 
revenue,  or  chief  officers  of  inspection;  and  also  for  conveying 
to  places  of  safe  custody  such  persons  as  may  be  apprehended 
and  not  admitted  to  bail. 

"The  objects  of  judiciary  process  and  other  civil  proceedings 
shall  be: 
"i.  To  bring  offenders  to  justice. 

"2.  To  enforce  penalties  on  delinquent  distillers  by  suit. 
"3.  To  enforce  the  penalties  of  forfeiture  on  the  same  per- 
sons by  the  seizure  of  their  stills  and  spirits. 

"  The  better  to  effect  these  purposes,  the  Judge  of  the  district, 
Richard  Peters,  Esq.,  and  the  Attorney  of  the  district,  William 
Rawl,  Esq.,  accompany  the  army. 

"You  are  aware  that  the  Judge  cannot  be  controlled  in  his 
functions.  But  I  count  on  his  disposition  to  cooperate  in  such 
a  general  plan,  as  shall  appear  to  you  consistent  with  the 
policy  of  the  case.  But  your  method  of  giving  direction  to 
proceedings,  according  to  your  general  plan,  will  be  by  in- 
structions to  the  district  attorney. 

"  He  ought  particularly  to  be  instructed  (with  due  regard 
to  time  and  circumstances,)  ist,  To  procure  to  be  arrested  all 
influential  actors  in  riots  and  unlawful  assemblies,  relating  to 
the  insurrection  and  combination  to  resist  the  laws ;  or  having 
for  object  to  abet  that  insurrection  and  these  combinations; 
and  who  shall  not  have  complied  with  the  terms  offered  by  the 
commissioners,  or  manifested  their  repentance  in  some  other 
way,  which  you  may  deem  satisfactory.  2d.  To  cause  process 
to  issue,  for  enforcing  penalties  on  delinquent  distillers.   3d. 


196        THE  FEDERAL  GOVERNMENT 

To  cause  offenders  who  may  be  arrested,  to  be  conveyed  to 
jails  where  there  will  be  no  danger  of  rescue  —  those  for  mis- 
demeanors to  the  jails  of  York  and  Lancaster  —  those  for 
capital  offenses  to  the  jail  of  Philadelphia,  as  more  secure  than 
the  others.  4th.  Prosecute  indictable  offenses  in  the  court  of 
the  United  States;  those  for  penalties,  or  delinquents,  under 
the  laws  before  mentioned,  in  the  courts  of  Pennsylvania. 

"As  a  guide  in  the  case,  the  District  Attorney  has  with  him 
a  list  of  the  persons  who  have  availed  themselves  of  the  offers 
of  the  commissioners  on  the  day  appointed. 

"The  seizure  of  stills  is  of  the  province  of  the  supervisor, 
and  other  officers  of  inspection.  It  is  difficult  to  chalk  out  a 
precise  hne  concerning  it.  There  are  opposite  considerations 
which  will  require  to  be  nicely  balanced,  and  which  must  be 
judged  of  by  those  officers  on  the  spot.  It  may  be  useful  to 
confine  the  seizure  of  stills  to  the  most  leading  and  refractory 
distillers.  It  may  be  advisable  to  extend  them  far  into  the  most 
refractory  county.  .  .  . 

"You  are  to  exert  yourself  by  all  possible  means  to  preserve 
discipline  amongst  the  troops,  particularly  a  scrupulous  regard 
to  the  rights  of  persons  and  property,  and  a  respect  for  the 
authority  of  the  civil  magistrates,  taking  especial  care  to  incul- 
cate, and  cause  to  be  observed  this  principle  —  that  the  duties 
of  the  army  are  confined  to  attacking  and  subduing  of  armed 
opponents  of  the  laws,  and  to  the  supporting  and  aiding  of  the 
civil  officers  in  the  execution  of  their  functions. 

"It  has  been  settled  that  the  Governor  of  Pennsylvania  will 
be  second,  the  Governor  of  New  Jersey  third  in  command;  and 
that  the  troops  of  the  several  States  in  line,  on  the  march,  and 
upon  detachment,  are  to  be  posted  according  to  the  rule  which 
prevailed  in  the  army  during  the  late  war,  namely,  in  moving 
toward  the  seaboard,  the  most  southern  troops  will  take  the 
right —  in  moving  toward  the  north,  the  most  northern  troops 
will  take  the  right.  .  .  . 

"  With  great  respect,  I  have  the  honor  to  be,  Sir, 
"Your  obedient  servant, 

"Alexander  Hamilton." 


CHAPTER  XXII 

THE   PART   OF  THE   HOUSE    IN   TREATY-MAKING 

Upon  the  ratification  of  the  Jay  Treaty  by  the  Senate,  the  opposition 
in  the  House  sought  to  compass  its  defeat  by  withholding  the  necessary 
legislation  to  carry  it  into  effect.  It  was  asserted  that  the  House,  while 
not  a  part  of  the  treaty-making  agency  of  the  Government,  might 
properly  call  upon  the  President  for  papers  relative  to  a  treaty,  in  order 
wisely  to  exercise  its  discretionary  power  of  providing  —  or  not  provid- 
ing —  for  the  execution  of  the  terms  of  a  treaty.  These  contentions  were 
ably  presented  by  Gallatin.  The  supporters  of  the  administration  were 
sustained  by  Washington's  vigorous  message.  The  claims  of  the  House 
were  finally  recorded  in  the  Blount  Resolutions,  and  have  never  been 
formally  relinquished. 

6i.  Debate  in  the  House  of  Representatives  on  the  Jay  Treaty.^ 

On  the  second  of  March,  [1796,]  Mr.  Livingston,  after  stating 
that  the  late  British  Treaty  must  give  rise  in  the  House  to  some 
very  important  and  constitutional  questions,  to  throw  light 
upon  which  every  information  would  be  required,  laid  the  fol- 
lowing resolution  upon  the  table. 

^^  Resolved,  That  the  President  of  the  United  States  be 
requested  to  lay  before  this  House  a  copy  of  the  instructions 
to  the  Minister  of  the  United  States,  who  negotiated  the  Treaty 
with  the  King  of  Great  Britain,  communicated  by  his  Message 
of  the  first  of  March,  together  with  the  correspondence  and 
other  documents  relative  to  the  said  Treaty." 

March  7.  —  Mr.  Livingston  said  he  wished  to  modify  the 
resolution  he  had  laid  on  the  table,  requesting  the  President  to 
lay  before  the  House  sundry  documents  respecting  the  Treaty. 
It  was  calculated  to  meet  the  suggestions  of  gentlemen  to  whose 
opinions  he  paid  the  highest  respect,  and  was  founded  in  the 
reflection  that  the  negotiations  on  the  twelfth  article  were 
probably  unfinished;  and  therefore,  he  said,  a  disclosure  of 
papers  relative  to  that  or  any  other  pending  negotiation,  might 
^  Annals  oj Congress,  4  Cong.,  i  Sess.,  426-772  passim. 


198        THE  FEDERAL  GOVERNMENT 

embarrass  the  Executive.  He  wished,  therefore,  to  add,  at  the 
end  of  his  former  motion,  the  following  words:  "Excepting 
such  of  said  papers  as  any  existing  negotiation  may  render 
improper  to  be  disclosed." 
The  motion  of  Mr.  Livingston  was  then  taken  up.  .  .  . 

Mr.  Gallatin  conceived  that,  whether  the  House  had  a  dis- 
cretionary power  with  respect  to  Treaties,  or  whether  they 
were  absolutely  bound  by  those  instruments,  and  were  obliged 
to  pass  laws  to  carry  them  fully  into  effect,  still  there  was  no 
impropriety  in  calling  for  the  papers.  Under  the  first  view  of 
the  subject,  if  the  House  has  a  discretionary  power,  then  no 
doubt  could  exist  that  the  information  called  for  is  proper; 
and,  under  the  second,  if  bound  to  pass  laws,  they  must  have  a 
complete  knowledge  of  the  subject,  to  learn  what  laws  ought  to 
be  passed.  This  latter  view  of  the  subject,  even,  must  intro- 
duce a  discussion  of  the  Treaty,  to  know  whether  any  law  ought 
to  be  repealed,  or  to  see  what  laws  ought  to  be  passed.  If  any 
article  in  the  instrument  should  be  found  of  doubtful  import, 
the  House  would  most  naturally  search  for  an  explanation,  in 
the  documents  which  related  to  the  steps  which  led  to  the 
Treaty,  If  one  article  of  the  Treaty  only  be  doubtful,  the 
House  would  not  know  how  to  legislate  without  the  doubt 
being  removed,  and  its  explanation  could  certainly  be  found 
nowhere  with  so  mmch  propriety  as  in  the  correspondence  be- 
tween the  negotiating  parties. 

Gentlemen  had  gone  into  an  examination  of  an  important 
constitutional  question  upon  this  motion.  He  hoped  this  would 
have  been  avoided  in  the  present  stage  of  the  business ;  but  as 
they  had  come  forward  on  that  ground,  he  had  no  objection 
to  follow  them  in  it,  and  to  rest  the  decision  of  the  constitutional 
powers  of  Congress  on  the  fate  of  the  present  question.  He  would, 
therefore,  state  his  opinion,  that  the  House  had  a  right  to  ask 
for  the  papers  proposed  to  be  called  for,  because  their  co-oper- 
ation and  sanction  was  necessary  to  carry  the  Treaty  into  full 
effect,  to  render  it  a  binding  instrument,  and  to  make  it,  pro- 
perly speaking,  a  law  of  the  land;  because  they  had  a  full  dis- 


THE  HOUSE  IN  TREATY-MAKING     199 

cretion  either  to  give  or  to  refuse  that  co-operation;  because 
they  must  be  guided,  in  the  exercise  of  that  discretion,  by  the 
merits  and  expediency  of  the  Treaty  itself,  and  therefore  had 
a  right  to  ask  for  every  information  which  could  assist  them  in 
deciding  that  question. 

One  argument  repeatedly  used  by  every  gentleman  opposed 
to  the  present  motion  was,  "That  the  Treaty  was  unconstitu- 
tional or  not;  if  not,  the  House  had  no  agency  in  the  business, 
but  must  carry  it  into  full  effect;  and  if  unconstitutional,  the 
question  could  only  be  decided  from  the  face  of  the  instrument, 
and  no  papers  could  throw  light  upon  the  question."  He  wished 
gentlemen  had  defined  what  they  understood  by  a  constitu- 
tional Treaty;  for,  if  the  scope  of  their  arguments  was  referred 
to,  it  would  not  be  found  possible  to  make  an  unconstitutional 
treaty.  He  would  say  what  he  conceived  constituted  the 
unconstitutionality  of  a  treaty.  A  treaty  is  unconstitutional  if 
it  provides  for  doing  such  things,  the  doing  of  which  is  forbidden 
by  the  Constitution;  but  if  a  treaty  embraces  objects  within 
the  sphere  of  the  general  powers  delegated  to  the  Federal 
Government,  but  which  have  been  exclusively  and  specially 
granted  to  a  particular  branch  of  Government,  say  to  the 
Legislative  department,  such  a  Treaty,  though  not  unconsti- 
tutional, does  not  become  the  law  of  the  land  until  it  has 
obtained  the  sanction  of  that  branch.  In  this  case,  and  to  this 
end,  the  Legislature  have  a  right  to  demand  the  documents 
relative  to  the  negotiation  of  the  Treaty,  because  that  Treaty 
operates  on  objects  specially  delegated  to  the  Legislature.  He 
turned  to  the  Constitution.  It  says  that  the  President  shall 
have  the  power  to  make  Treaties,  by  and  with  the  advice  and 
consent  of  two-thirds  of  the  Senate.  It  does  not  say  what 
Treaties.  If  the  clause  be  taken  by  itself,  then  it  grants  an  au- 
thority altogether  undefined.  But  the  gentlemen  quote  another 
clause  of  the  Constitution,  where  it  is  said  that  the  Constitution, 
and  the  laws  made  in  pursuance  thereof,  and  all  Treaties,  are 
the  supreme  law  of  the  land ;  and  thence,  they  insist  that  Treaties 
made  by  the  President  and  Senate  are  the  supreme  law  of  the 
land,  and  that  the  power  of  making  Treaties  is  undefined  and 


200        THE  FEDERAL  GOVERNMENT 

unlimited.  He  proceeded  to  controvert  this  opinion,  and  con- 
tended that  it  was  limited  by  other  parts  of  the  Constitution. 
The  power  of  m.aking  Treaties  is  contended  to  be  undefined, 
then  it  might  extend  to  all  subjects  which  may  properly  become 
the  subjects  of  national  compacts.  But,  he  contended,  if  any 
other  specific  powers  were  given  to  a  different  branch  of  the 
Government,  they  must  limit  the  general  powers;  and,  to  make 
the  compact  valid,  it  was  necessary  that,  as  far  as  those  powers 
clashed  with  the  general,  that  the  branch  holding  the  specific 
should  concur  and  give  its  sanction.  If  still  it  is  insisted  that 
Treaties  are  the  supreme  law  of  the  land,  the  Constitution  and 
laws  are  also;  and  it  may  be  asked,  which  shall  have  the  prefer- 
ence? Shall  a  Treaty  repeal  a  law  or  a  law  a  Treaty?  Neither 
can  a  law  repeal  a  Treaty,  because  a  Treaty  is  made  with  the 
concurrence  of  another  party  —  a  foreign  nation  —  that  has 
no  participation  in  framing  the  law:  nor  can  a  Treaty  made  by 
the  President  and  Senate  repeal  a  law,  for  the  same  reason, 
because  the  House  of  Representatives  have  a  participation  in 
making  the  law.  It  is  a  sound  maxim  in  Government,  that  it 
requires  the  same  power  to  repeal  a  law  that  enacted  it.  If  so, 
then  it  follows  that  laws  and  Treaties  are  not  of  the  same 
nature;  that  both  operate  as  the  law  of  the  land,  but  under 
certam  limitations;  both  are  subject  to  the  control  of  the  Con- 
stitution; they  are  made  not  only  by  different  powers,  but  those 
powers  are  distributed,  under  different  modifications,  among 
the  several  branches  of  the  Government.  Thus  no  law  could 
be  made  by  the  Legislature  giving  themselves  power  to  execute 
it;  and  no  Treaty  by  the  Executive,  embracing  objects  specific- 
ally assigned  to  the  Legislature  without  their  assent. 

To  what,  he  asked,  would  a  contrary  doctrine  lead?  .If  the 
power  of  making  Treaties  is  to  reside  in  the  President  and  Sen- 
ate unlimitedly :  in  other  words,  if,  in  the  exercise  of  this  power, 
the  President  and  Senate  are  to  be  restrained  by  no  other 
branch  of  the  Government,  the  President  and  Senate  may 
absorb  all  Legislative  power  —  the  Executive  has,  then, 
nothing  to  do  but  to  substitute  a  foreign  nation  for  the  House 
of  Representatives,  and  they  may  legislate  to  any  extent.   If 


THE  HOUSE  IN  TREATY-MAKING     201 

the  Treaty-making  power  is  unlimited  and  undefined,  it  may 
extend  to  every  object  of  legislation.    Under  it  money  may 
be  borrowed,  as  well  as  commerce  regulated;  and  why  not 
money  appropriated?  For,  arguing  as  the  gentlemen  do,  they 
might  say  the  Constitution  says  that  no  money  shall  be  drawn 
from  the  Treasury  but  in  consequence  of  appropriations  made 
by  law.   But  Treaties,  whatever  provision  they  may  contain, 
are  law;  appropriations,  therefore,  may  be  made  by  Treaties. 
Then  it  would  have  been  the  shortest  way  to  have  carried  the 
late  Treaty  into  effect  by  the  instrument  itself,  by  adding  to 
it  another  article,  appropriating  the  necessary  sums.  By  what 
provision  of  the  Constitution  is  the  Treaty-making  power, 
agreeably  to  the  construction  of  the  gentlemen,  limited?  Is  it 
limited  by  the  provisions  with  respect  to  appropriations?  Not 
more  so  than  by  the  other  specific  powers  granted  to  the  Legis- 
lature. Is  it  limited  by  any  law  past?  If  not,  it  must  embrace 
every  thing,  and  all  the  objects  of  legislation.  If  not  Hmited  by 
existing  laws,  or  if  it  repeals  the  laws  that  clash  with  it,  or  if 
the  Legislature  is  obliged  to  repeal  the  laws  so  clashing,  then 
the  Legislative  power  in  fact  resides  in  the  President  and  Sen- 
ate, and  they  can,  by  employing  an  Indian  tribe,  pass  any  law 
under  the  color  of  Treaty.  Unless  it  is  allowed  that  either  the 
power  of  the  House  over  the  purse-strings  is  a  check,  or  the 
existing  laws  cannot  be  repealed  by  a  Treaty,  or  that  the  special 
powers  granted  to  Congress  limit  the  general  power  of  Treaty- 
making,  there  are  no  bounds  to  it,  it  must  absorb  all  others, 
repeal  all  laws  in  contravention  to  it,  and  act  without  control. 
To  the  construction  he  had  given  to  this  part  of  the  Constitu- 
tion, no  such  formidable  objections  could  be  raised.  He  did  not 
claim  ior  the  House  a  power  of  making  Treaties,  but  a  check 
upon  the  Treaty-making  power  —  a  mere  negative  power; 
whilst  those  who  are  in  favor  of  a  different  construction  advo- 
cate a  positive  and  unlimited  power.  .  .  . 

March  30.  —  The  following  Message  was  received  from  the 
President  in  answer  to  the  resolution  of  the  House:  ^ 
^  The  Resolution  was  adopted  by  a  vote  of  62  to  37. 


202        THE  FEDERAL  GOVERNMENT 

Gentlemen  of  the  House  of  Representatives: 

With  the  utmost  attention  I  have  considered  your  resolu- 
tion of  the  24th  instant,  requesting  me  to  lay  before  your  House 
a  copy  of  the  instructions  to  the  Minister  of  the  United  States, 
who  negotiated  the  Treaty  with  the  King  of  Great  Britain, 
together  with  the  correspondence  and  other  documents  rela- 
tive to  that  Treaty,  excepting  such  of  the  said  papers  as  any 
existing  negotiation  may  render  improper  to  be  disclosed. 

In  deliberating  upon  this  subject,  it  was  impossible  for  me 
to  lose  sight  of  the  principle  which  some  have  avowed  in  its 
discussion,  or  to  avoid  extending  my  views  to  the  consequences 
which  must  flow  from  the  admission  of  that  principle. 

I  trust  that  no  part  of  my  conduct  has  ever  indicated  a  dis- 
position to  withhold  any  information  which  the  Constitution 
has  enjoined  upon  the  President,  as  a  duty,  to  give,  or  which 
could  be  required  of  him  by  either  House  of  Congress  as  a  right ; 
and,  with  truth,  I  affirm,  that  it  has  been,  as  it  will  continue 
to  be,  while  I  have  the  honor  to  preside  in  the  Government, 
my  constant  endeavor  to  harmonize  with  the  other  branches 
thereof,  so  far  as  the  trust  delegated  to  me  by  the  people  of  the 
United  States,  and  my  sense  of  the  obligation  it  imposes,  to 
"preserve,  protect,  and  defend  the  Constitution,"  will  permit. 

The  nature  of  foreign  negotiations  requires  caution ;  and  their 
success  must  often  depend  on  secrecy;  and  even,  when  brought 
to  a  conclusion,  a  full  disclosure  of  all  the  measures,  demands, 
or  eventual  concessions  which  may  have  been  proposed  or 
contemplated  would  be  extremely  impolitic;  for  this  might 
have  a  pernicious  influence  on  future  negotiation;  or  produce 
immediate  inconveniences,  perhaps  danger  and  mischief,  in 
relation  to  other  Powers.  The  necessity  of  such  caution  and 
secrecy  was  one  cogent  reason  for  vesting  the  power  of  making 
Treaties  in  the  President  with  the  advice  and  consent  of  the 
Senate;  the  principle  on  which  the  body  was  formed  confining 
it  to  a  small  number  of  members.  To  admit,  then,  a  right  in 
the  House  of  Representatives  to  demand,  and  to  have,  as  a 
matter  of  course,  all  the  papers  respecting  a  negotiation  with  a 
foreign  Power,  would  be  to  establish  a  dangerous  precedent. 


THE  HOUSE  IN  TREATY-MAKING     203 

It  does  not  occur  that  the  inspection  of  the  papers  asked  for 
can  be  relative  to  any  purpose  under  the  cognizance  of  the 
House  of  Representatives,  except  that  of  an  impeachment; 
which  the  resolution  has  not  expressed.  I  repeat,  that  I  have 
no  disposition  to  withhold  any  information  which  the  duty  of 
my  station  will  permit,  or  the  public  good  shall  require;  to  be 
disclosed;  and,  in  fact,  all  the  papers  affecting  the  negotiation 
with  Great  Britain  were  laid  before  the  Senate,  when  the  Treaty 
itself  was  communicated  for  their  consideration  and  advice. 

The  course  which  the  debate  has  taken  on  the  resolution  of 
the  House,  leads  to  some  observations  on  the  mode  of  making 
Treaties  under  the  Constitution  of  the  United  States. 

Having  been  a  member  of  the  General  Convention,  and 
knowing  the  principles  on  which  the  Constitution  was  formed, 
I  have  ever  entertained  but  one  opinion  on  this  subject,  and 
from  the  first  establishment  of  the  Government  to  this  moment, 
my  conduct  has  exemplified  that  opinion,  that  the  power  of 
making  Treaties  is  exclusively  vested  in  the  President,  by  and 
with  the  advice  and  consent  of  the  Senate,  provided  two- 
thirds  of  the  Senators  present  concur ;  and  that  every  Treaty  so 
made,  and  promulgated,  thenceforward  becomes  the  law  of  the 
land.  It  is  thus  that  the  Treaty-making  power  has  been  under- 
stood by  foreign  nations,  and  in  all  the  Treaties  made  with 
them,  we  have  declared,  and  they  have  believed,  that  when 
ratified  by  the  President,  with  the  advice  and  consent  of  the 
Senate,  they  became  obligatory.  In  this  construction  of  the 
Constitution  every  House  of  Representatives  has  heretofore 
acquiesced,  and  until  the  present  time  not  a  doubt  or  suspicion 
has  appeared  to  my  knowledge  that  this  construction  was  not 
the  true  one.  Nay,  they  have  more  than  acquiesced;  for  until 
now,  without  controverting  the  obligation  of  such  Treaties, 
they  have  made  all  the  requisite  provisions  for  carrying  them 
into  effect. 

There  is  also  reason  to  believe  that  this  construction  agrees 
with  the  opinions  entertained  by  the  State  Conventions,  when 
they  were  deliberating  on  the  Constitution,  especially  by  those 
who  objected  to  it,  because  there  was  not  required  in  Commer- 


204        THE  FEDERAL  GOVERNMENT 

cial  Treaties  the  consent  of  two-thirds  of  the  whole  number  of 
the  members  of  the  Senate,  instead  of  two-thirds  of  the  Sen- 
ators present,  and  because,  in  Treaties  respecting  territorial 
and  certain  other  rights  and  claims,  the  concurrence  of  three- 
fourths  of  the  whole  number  of  the  members  of  both  Houses 
respectively  was  not  made  necessary. 

It  is  a  fact,  declared  by  the  General  Convention,  and  uni- 
versally understood,  that  the  Constitution  of  the  United  States 
was  the  result  of  a  spirit  of  amity  and  mutual  concession.  And 
it  is  well  known  that,  under  this  influence,  the  smaller  States 
were  admitted  to  an  equal  representation  in  the  Senate,  with 
the  larger  States;  and  that  this  branch  of  the  Government  was 
invested  with  great  powers;  for,  on  the  equal  participation  of 
those  powers,  the  sovereignty  and  political  safety  of  the  smaller 
States  were  deemed  essentially  to  depend. 

If  other  proofs  than  these,  and  the  plain  letter  of  the  Consti- 
tution itself,  be  necessary  to  ascertain  the  point  under  consider- 
ation, they  may  be  found  in  the  Journals  of  the  General  Con- 
vention, which  I  have  deposited  in  the  office  of  the  Depart- 
ment of  State,  In  those  Journals  it  will  appear,  that  a  proposi- 
tion was  made,  "that  no  Treaty  should  be  binding  on  the 
United  States  which  was  not  ratified  by  a  law,"  and  that  the 
proposition  was  explicitly  rejected. 

As,  therefore,  it  is  perfectly  clear  to  my  understanding,  that 
the  assent  of  the  House  of  Representatives  is  not  necessary  to 
the  vaUdity  of  a  Treaty;  as  the  Treaty  with  Great  Britain 
exhibits  in  itself  all  the  objects  requiring  Legislative  provision, 
and  on  these  the  papers  called  for  can  throw  no  light;  and  as  it 
is  essential  to  the  due  administration  of  the  Government,  that 
the  boundaries  fixed  by  the  Constitution  between  the  different 
departments  should  be  preserved  —  a  just  regard  to  the  Con- 
stitution and  to  the  duty  of  my  office,  under  all  the  circum- 
stances of  this  case,  forbid  a  compliance  with  your  request. 

G.  Washington. 

April  6.  —  The  House  accordingly  resolved  itself  into  a  Com- 
mittee of  the  Whole  on  said  Message. 


THE  HOUSE  IN  TREATY-MAKING     205 

Mr.  Blount  brought  forward  the  following  resolutions : 

"Resolved,  That,  it  being  declared  by  the  second  section  of 
the  second  article  of  the  Constitution, '  that  the  President  shall 
have  power,  by  and  with  the  advice  of  the  Senate,  to  make 
Treaties,  provided  two- thirds  of  the  Senate  present  concur,' 
the  House  of  Representatives  do  not  claim  any  agency  in 
making  Treaties;  but,  that  when  a  Treaty  stipulates  regula- 
tions on  any  of  the  subjects  submitted  by  the  Constitution  to 
the  power  of  Congress,  it  must  depend  for  its  execution,  as  to 
such  stipulations,  on  a  law  or  laws  to  be  passed  by  Congress. 
And  it  is  the  constitutional  right  and  duty  of  the  House  of 
Representatives,  in  all  such  cases,  to  deliberate  on  the  expedi- 
ency or  inexpediency  of  carrying  such  Treaty  into  effect,  and 
to  determine  and  act  thereon,  as,  in  their  judgment,  may  be 
most  conducive  to  the  public  good. 

"Resolved,  That  it  is  not  necessary  to  the  propriety  of  any 
application  from  this  House  to  the  Executive,  for  information 
desired  by  them,  and  which  may  relate  to  any  constitutional 
functions  of  the  House,  that  the  purpose  for  which  such  in- 
formation may  be  wanted,  or  to  which  the  same  may  be  applied, 
should  be  stated  in  the  application." 

[The  Blount  Resolutions  were  carried  by  a  vote  of  57  to  35. 
But  the  House  afterward  voted  to  carry  the  treaty  into  effect 
by  a  vote  of  51  to  48.] 


CHAPTER  XXIII 

THE   ORGANIZATION  AND  PROCEDURE  OF  THE  HOUSE  OF 
REPRESENTATIVES 

The  general  structure  of  Congress  is  outlined  in  the  Constitution;  but 
aside  from  certain  requirements  as  to  the  election  of  presiding  officers, 
quorum,  keeping  of  a  journal  and  adjournment,  the  Constitution  does 
not  prescribe  the  internal  organization  of  the  Houses  of  Congress.  "Each 
House  may  determine  the  Rules  of  its  own  Proceedings."  A  body  of  rules 
first  appears  in  the  Journal  of  the  House  in  1789.  In  1797  Thomas  Jef- 
ferson  prepared  a  manual  of  parliamentary  practice  for  his  own  guidance 
as  President  of  the  Senate.  Both  sets  of  rules  were  based  upon  familiar 
practices  in  the  legislatures  of  the  several  States  or  upon  the  regulations  of 
the  English  Parliament,  which,  as  Jefiferson  said,  were  "a  prototype  to 
most  of  them."  The  rules  adopted  in  1802  have  been  selected  to  show  the 
procedure  of  the  House  at  a  time  when  standing  committees  were  begin- 
ning to  take  the  place  of  select  committees.  The  joint  rules  continued  in 
force  without  essential  change  until  their  abrogation  in  1876. 

62.  The  Opening  of  a  Session.^ 

This  being  the  day  appointed  by  the  Constitution  for  the 
annual  meeting  of  Congress,  the  following  members  of  the 
House  of  Representatives  appeared,  produced  their  credentials, 
and  took  their  seats  in  the  House,  to  wit:  .  .  . 

A  quorum,  consisting  of  a  majority  being  present,  the  House 
proceeded,  by  ballot,  to  the  choice  of  a  Speaker;  and,  upon 
examining  the  ballots,  a  majority  of  the  votes  of  the  whole 
House  was  found  in  favor  of  Nathaniel  Macon,  one  of  the 
Representatives  for  the  State  of  North  Carolina:  Whereupon, 
Mr.  Macon  was  conducted  to  the  Chair,  and  he  made  his 
acknowledgments  to  the  House,  as  follows: 

"Gentlemen:  Accept  my  sincere  thanks  for  the  honor  you 
have  conferred  on  me,  in  the  choice  just  made.  The  duties  of 
the  Chair  will  be  undertaken  with  great  diffidence  indeed;  but 
it  shall  be  my  constant  endeavor  to  discharge  them  with 
fidelity  and  impartiality." 

^  Annah  of  Congress,  7  Cong.,  i  Sess.  (1801),  309-11. 


THE  HOUSE  OF  REPRESENTATIVES   207 

The  House  proceeded,  in  the  same  manner,  to  the  appoint- 
ment of  a  Clerk;  and,  upon  examining  the  ballots,  a  majority 
of  the  Whole  House  was  found  in  favor  of  John  Beckley. 

The  oath  to  support  the  Constitution  of  the  United  States, 
as  prescribed  by  law,  was  then  administered  by  Mr.  Griswold, 
one  of  the  Representatives  for  the  State  of  Connecticut,  to  the 
Speaker;  and  then  the  same  oath,  or  affirmation,  was  admin- 
istered, by  Mr.  Speaker,  to  each  of  the  members  present. 

A  message  from  the  Senate  informed  the  House  that  a 
quorum  of  the  Senate  is  assembled,  and  ready  to  proceed  to 
business;  and  that,  in  the  absence  of  the  Vice  President,  they 
have  elected  the  honorable  Abraham  Baldwin,  President  of 
the  Senate,  pro  tempore. 

Ordered,  That  a  message  be  sent  to  the  Senate  to  inform 
them  that  a  quorum  of  this  House  is  assembled,  and  have 
elected  Nathaniel  Macon,  one  of  the  Representatives  of  the 
State  of  North  Carolina,  their  Speaker,  and  are  now  ready  to 
proceed  to  business;  and  that  the  Clerk  of  this  House  do  go 
with  the  said  message. 

The  House  proceeded,  by  ballot,  to  the  choice  of  a  Sergeant- 
at-Arms,  Doorkeeper,  and  Assistant  Doorkeeper;  and,  upon 
examining  the  ballots,  a  majority  of  the  votes  of  the  whole 
House  was  found  in  favor  of  Joseph  Wheaton,  as  Sergeant-at- 
Arms,  and,  also,  an  unanimous  vote  in  favor  of  Thomas  Clax- 
ton  and  Thomas  Dunn,  severally,  the  former  as  Doorkeeper, 
and  the  latter  as  Assistant  Doorkeeper. 

A  message  from  the  Senate  informed  the  House  that  the 
Senate  have  appointed  a  committee  on  their  part,  jointly,  with 
such  committee  as  may  be  appointed  on  the  part  of  this  House, 
to  wait  on  the  President  of  the  United  States,  and  inform  him 
that  a  quorum  of  the  two  Houses  is  assembled,  and  ready  to  re- 
ceive any  communications  he  may  think  proper  to  make  to  them. 

The  House  proceeded  to  consider  the  said  message  of  the 
Senate,  and  concurred  therein. 

Ordered,  That  Mr.  Samuel  Smith,  Mr.  Griswold,  and  Mr. 
Davis,  be  appointed  a  committee  on  the  part  of  this  House, 
for  the  purpose  expressed  in  the  message  of  the  Senate. 


2o8        THE  FEDERAL  GOVERNMENT 

On  motion,  it  was 

Resolved,  That  the  rules  and  orders  of  proceeding  established 
by  the  late  House  of  Representatives,  shall  be  deemed  and 
taken  to  be  the  rules  and  orders  of  proceeding  to  be  observed 
in  this  House,  until  a  revision  or  alteration  of  the  same  shall 
take  place. 

Ordered,  That  a  committee  be  appointed  to  prepare  and 
report  standing  rules  and  orders  of  proceeding  to  be  observed 
in  this  House;  and  that  Mr.  Varnum,  Mr.  Giles,  Mr.  Leib,  Mr. 
Davenport,  and  Mr.  Henderson,  be  the  said  committee. 

Ordered,  That  the  Clerk  of  this  House  cause  the  members  to 
be  furnished,  during  the  present  session,  with  three  newspapers 
to  each  member,  such  as  the  members,  respectively,  shall 
choose,  to  be  delivered  at  their  lodgings. 

Mr.  Samuel  Smith,  from  the  joint  committee  appointed  to 
wait  on  the  President  of  the  United  States,  and  notify  him  that 
a  quorum  of  the  two  Houses  is  assembled  and  ready  to  receive 
any  communication  he  may  think  proper  to  make  to  them, 
reported  that  the  committee  had  performed  that  service,  and 
that  the  President  signified  to  them  that  he  would  make  a 
communication  to  this  House,  to-morrow,  by  message. 

63.  Rules  and  Orders  of  the  House  of  Representatives} 
First.  —  Touching  the  duty  of  the  Speaker. 

He  shall  take  the  Chair  every  day  at  the  hour  to  which  the 
House  shall  have  adjourned  on  the  preceding  day;  shall  imme- 
diately call  the  members  to  order;  and,  on  the  appearance  of  a 
quorum,  shall  cause  the  Journal  of  the  preceding  day  to  be 
read. 

He  shall  preserve  decorum  and  order;  may  speak  to  points 
of  order,  in  preference  to  other  members,  rising  from  his  seat 
for  that  purpose,  and  shall  decide  questions  of  order,  subject 
to  an  appeal  to  the  House  by  any  two  members. 

He  shall  rise  to  put  a  question,  but  may  state  it  sitting. 

Questions  shall  be  distinctly  put  in  this  form,  to  wit:  "As 

^  Annals  of  Congress,  7  Cong.,  i  Sess.  (1801-2),  409-15. 


THE  HOUSE  OF  REPRESENTATIVES   209 

many  as  are  of  opinion  that  (as  the  case  may  be)  say  Ay ; "  and, 
after  the  afi&rmative  voice  is  expressed,  "As  many  as  are  of  a 
contrary  opinion,  say  No."  If  the  Speaker  doubts,  or  a  divi- 
sion be  called  for,  the  House  shall  divide;  those  in  the  affirma- 
tive of  the  question  shall  first  rise  from  their  seats,  and  after- 
wards those  m  the  negative.  If  the  Speaker  still  doubts,  or  a 
count  be  required,  the  Speaker  shall  name  two  members,  one 
from  each  side,  to  tell  the  numbers  in  the  affirmative;  which 
being  reported,  he  shall  then  name  two  others,  one  from  each 
side,  to  tell  those  in  the  negative;  which  being  also  reported, 
he  shall  rise,  and  state  the  decision  to  the  House. 

All  committees  shall  be  appointed  by  the  Speaker,  unless 
otherwise  specially  directed  by  the  House,  in  which  case  they 
shall  be  appointed  by  ballot;  and  if,  upon  such  ballot,  the 
number  required  shall  not  be  elected  by  a  majority  of  the  votes 
given,  the  House  shall  proceed  to  a  second  ballot,  in  which  a 
plurality  of  votes  shall  prevail;  and  in  case  a  greater  number 
than  are  required  to  compose  or  complete  the  committee  shall 
have  an  equal  number  of  votes,  the  House  shall  proceed  to  a 
further  ballot  or  ballots. 

In  all  cases  of  ballot  by  the  House,  the  Speaker  shall  vote; 
in  other  cases  he  shall  not  vote,  unless  the  House  be  equally 
divided,  or  unless  his  vote,  if  given  to  the  majority  [minority], 
will  make  the  division  equal;  and,  in  case  of  such  equal  di- 
vision, the  question  shall  be  lost. 

All  acts,  addresses,  and  joint  resolutions,  shall  be  signed  by 
the  Speaker;  and  all  writs,  warrants,  or  subpoenas,  issued  by 
order  of  the  House,  shall  be  under  his  hand  and  seal,  attested 
by  the  Clerk. 

In  case  of  any  disturbance  or  disorderly  conduct  in  the  gal- 
lery or  lobby,  the  Speaker  (or  Chairman  of  the  Committee  of 
the  whole  House)  shall  have  power  to  order  the  same  to  be 
cleared. 

Stenographers  shall  be  admitted;  and  the  Speaker  shall  as- 
sign such  places  to  them  on  the  floor,  as  shall  not  interfere 
with  the  convenience  of  the  House. 


2IO        THE  FEDERAL  GOVERNMENT 

Five  standing  committees  shall  be  appointed  at  the  com- 
mencement of  each  session,  viz: 

A  Committee  of  Elections,  to  consist  of  seven  members; 

A  Committee  of  Claims,  to  consist  of  seven  members; 

A  Committee  of  Commerce  and  Manufactures,  to  consist  of 
seven  members ; 

A  Committee  of  Ways  and  Means,  to  consist  of  seven  mem- 
bers; 

And  a  Committee  of  Re\dsal  and  Unfinished  Business,  to 
consist  of  three  members.  .  .  . 

It  shall  be  the  duty  of  the  said  Committee  of  Ways  and 
Means  to  take  into  consideration  all  such  reports  of  the  Treas- 
ury Department,  and  all  such  propositions  relative  to  the  re- 
venue, as  may  be  referred  to  them  by  the  House;  to  inquire 
into  the  state  of  the  public  debt,  of  the  revenue,  and  of  the 
expenditures,  and  to  report,  from  time  to  time,  their  opinion 
hereon;  to  examine  into  the  state  of  the  several  public  depart- 
ments, and  particularly  into  the  laws  making  appropriations 
of  moneys,  and  to  report  whether  the  moneys  have  been  dis- 
bursed conformably  with  such  laws;  and,  also,  to  report,  from 
time  to  time,  such  provisions  and  arrangements,  as  may  be 
necessary  to  add  to  the  economy  of  the  departments,  and  the 
accountability  of  their  officers.  .  .  . 

Thirdly.  —  Of  Bills. 

Every  bill  shall  be  introduced  by  motion  for  leave,  or  by  an 
order  of  the  House  on  the  report  of  a  committee,  and,  in  either 
case,  a  committee  to  prepare  the  same  shall  be  appointed.  In 
cases  of  a  general  nature,  one  day's  notice,  at  least,  shall  be 
given  of  the  motion  to  bring  in  a  bill ;  and  every  such  motion 
may  be  committed. 

Every  bill  shall  receive  three  several  readings  in  the  House, 
previous  to  its  passage;  and  all  bills  shall  be  despatched  in 
order  as  they  were  introduced,  unless  where  the  House  shall 
direct  otherwise;  but  no  bill  shall  be  twice  read  on  the  same 
day,  without  special  order  of  the  House. 


THE  HOUSE  OF  REPRESENTATIVES   211 

The  first  reading  of  the  bill  shall  be  for  information,  and  if 
opposition  be  made  to  it  the  question  shall  be,  "Shall  the  bill 
be  rejected?  "  If  no  opposition  be  made,  or  if  the  question  to 
reject  be  negatived,  the  bill  shall  go  to  its  second  reading  with- 
out a  question. 

Upon  the  second  reading  of  the  bill,  the  Speaker  shall  state 
it  as  ready  for  commitment  or  engrossment;  and  if  committed, 
then  a  question  shall  be,  whether  to  a  select  or  standing  com- 
mittee, or  to  a  Committee  of  the  whole  House;  if  to  a  committee 
of  the  whole  House,  the  House  shall  determine  on  what  day. 
But  if  the  bill  be  ordered  to  be  engrossed,  the  House  shall 
appoint  the  day  when  it  shall  be  read  the  third  time. 

After  commitment  and  report  thereof  to  the  House,  a  bill 
may  be  recommitted,  or  at  any  time  before  its  passage. 

All  bills  ordered  to  be  engrossed,  shall  be  executed  in  a  fair 
round  hand. 

When  a  bill  shall  pass,  it  shall  be  certified  by  the  Clerk,  not- 
ing the  day  of  its  passing  at  the  foot  thereof.  .  .  . 

Joint  rules  and  Orders  of  the  Two  Houses. 

In  every  case  of  an  amendment  of  a  bill  agreed  to  in  one 
House,  and  dissented  to  in  the  other,  if  either  House  shall 
request  a  conference,  and  appoint  a  committee  for  that  purpose, 
and  the  other  House  shall  also  appoint  a  committee  to  confer, 
such  committees  shall,  at  a  convenient  hour,  to  be  agreed  on 
by  their  Chairman,  meet  in  the  conference  chamber,  and  state 
to  each  other  verbally  or  in  writing,  as  either  shall  choose,  the 
reason  of  their  respective  Houses  for  and  against  the  amend- 
ment, and  confer  freely  thereon. 

When  a  message  shall  be  sent  from  the  Senate  to  the  House 
of  Representatives,  it  shall  be  announced  at  the  door  of  the 
House,  by  the  Doorkeeper,  and  shall  be  respectfully  communi- 
cated to  the  Chair,  by  the  person  by  whom  it  may  be  sent. 

The  same  ceremony  shall  be  observed,  when  a  message  shall 
be  sent  from  the  House  of  Representatives  to  the  Senate. 

Messages  shall  be  sent  by  such  persons,  as  a  sense  of  pro- 
priety, in  each  House,  may  determine  to  be  proper. 


212        THE  FEDERAL  GOVERNMENT 

While  bills  are  on  their  passage  between  the  two  Houses, 
they  shall  be  on  paper,  and  under  the  signature  of  the  Sec- 
retary or  Clerk  of  each  House  respectively. 

After  a  bill  shall  have  passed  both  Houses,  it  shall  be  duly 
enrolled  on  parchment,  by  the  Clerk  of  the  House  of  Repre- 
sentatives, or  the  Secretary  of  the  Senate,  as  the  bill  may  have 
originated  in  the  one  or  the  other  House,  before  it  shall  be  pre- 
sented to  the  President  of  the  United  States. 

When  bills  are  enrolled,  they  shall  be  examined  by  a  joint 
committee  of  one  from  the  Senate,  and  two  from  the  House  of 
Representatives,  appointed  as  a  standing  committee  for  that 
purpose,  who  shall  carefully  compare  the  enrolment  with  the 
engrossed  bills,  as  passed  in  the  two  Houses,  and,  correcting 
any  errors  that  may  be  discovered  in  the  enrolled  bills,  make 
their  report,  forthwith,  to  the  respective  Houses. 

After  examination  and  report,  each  bill  shall  be  signed  in  the 
respective  Houses,  first  by  the  Speaker  of  the  House  of  Repre- 
sentatives, and  then  by  the  President  of  the  Senate. 

After  a  bill  shall  have  thus  been  signed  in  each  House,  it 
shall  be  presented  by  the  said  committee  to  the  President  of 
the  United  States,  for  his  approbation,  it  being  first  endorsed 
on  the  back  of  the  roll,  certifying  in  which  House  the  same 
originated;  which  endorsement  shall  be  signed  by  the  Secre- 
tary or  Clerk  (as  the  case  may  be)  of  the  House  in  which  the 
same  did  originate,  and  shall  be  entered  on  the  journal  of  each 
House.  The  said  committee  shall  report  the  day  of  presenta- 
tion to  the  President,  which  time  shall  also  be  carefully  entered 
on  the  Journal  of  each  House. 

All  orders,  resolutions,  and  votes,  which  are  to  be  presented 
to  the  President  of  the  United  States,  for  his  approbation,  shall 
also,  in  the  same  manner,  be  previously  enrolled,  examined, 
and  signed,  and  shall  be  presented  in  the  same  manner,  and  by 
the  same  committee,  as  provided  in  case  of  bills. 

When  the  Senate  and  House  of  Representatives  shall  judge 
it  proper  to  make  a  joint  address  to  the  President,  it  shall  be 
presented  to  him  in  his  audience  chamber,  by  the  President  of 
the  Senate,  in  the  presence  of  the  Speaker  and  both  Houses. 


THE  HOUSE  OF  REPRESENTATIVES   213 

64.  The  Beginnings  of  the  Committee  System} 

The  heads  of  departments  are  head  clerks.  Instead  of  being 
the  ministry,  the  organs  of  the  executive  power,  and  imparting 
a  kind  of  momentum  to  the  operation  of  the  laws,  they  are 
precluded  of  late  even  from  communicating  with  the  House, 
by  reports.  In  other  countries,  they  may  speak  as  well  as  act. 
We  allow  them  to  do  neither.  We  forbid  even  the  use  of  a 
speaking-trumpet;  or,  more  properly,  as  the  Constitution  has 
ordained  that  they  shall  be  dumb,  we  forbid  them  to  explain 
themselves  by  signs.  Two  evils,  obvious  to  you,  result  from  all 
this.  The  efficiency  of  the  government  is  reduced  to  its  mini- 
mum —  the  proneness  of  a  popular  body  to  usurpation  is 
already  advancing  to  its  maximum;  committees  already  are 
the  ministers;  and  while  the  House  indulges  a  jealousy  of 
encroachment  on  its  functions,  which  are  properly  deliberative, 
it  does  not  perceive  that  these  are  impaired  and  nullified  by  the 
monopoly  as  well  as  the  perversion  of  information,  by  these 
very  committees.  .  .  . 

The  committee  of  ways  and  means  has  not,  I  am  told,  writ- 
ten a  page  these  two  years.  It  collects  the  scraps  and  fritters  of 
facts  at  the  Treasury,  draws  crude  hasty  results  tinctured  with 
localities.  These  are  not  supported  by  any  formed  plan  of 
co-operation  with  the  members,  and  the  report  calls  forth  the 
pride  of  all  the  motion-makers.  Every  subject  is  suggested  in 
debate,  every  popular  ground  of  apprehension  is  invaded. 
There  is  nothing  to  enlighten  the  House  or  to  guide  the  public 
opinion.  .  .  . 

1  Fisher  Ames  to  Hamilton,  January  26,  1797.  Works  of  Alexafider 
Hamilton  (Hamilton  ed.),  vi,  201-02. 


CHAPTER  XXIV 

THE   ORIGIN    OF  THE   TWELFTH   AMENDMENT 

When  the  electoral  vote  for  President  was  counted  in  February,  1801, 
it  was  found  that  an  equal  number  of  votes  had  been  cast  for  the  Repub- 
lican candidates,  Jefferson  and  Burr.  Each  had  been  supported  by  a  major- 
ity of  the  whole  number  of  electors,  but  it  was  impossible  to  designate  "  the 
person  having  the  highest  number  of  votes."  The  election  then  devolved 
upon  the  House  of  Representatives,  which  was  preponderantly  Federalist. 
In  their  hatred  for  Jefferson,  certain  of  the  Federalists  intrigued  to  defeat 
the  obvious  will  of  their  opponents  by  bringing  Burr  into  the  presidency. 
When  the  balloting  began,  Jefferson  received  the  votes  of  eight  States  and 
Burr  of  six:  the  votes  of  two  States  were  equally  divided  and  so  not 
counted.  As  the  Constitution  required  a  majority  of  all  the  States  to 
elect,  there  was  no  choice.  The  result  was  the  same  on  thirty-five  succes- 
sive ballots.  On  the  thirty-sixth  ballot,  February  17,  Jefferson  received 
the  votes  of  ten  States  and  Burr  of  four  States.  The  votes  of  Delaware 
and  South  Carolina  were  blank,  because  the  Federalists  abstained  from 
voting.  How  this  result  was  brought  about  is  described  by  Bayard  of 
Delaware  in  his  letter  to  Hamilton.  It  was  this  Jefferson-Burr  contest 
which  gave  impetus  to  the  movement  to  amend  the  Constitution  so  as  to 
prevent  a  recurrence  of  such  a  crisis.  The  effect  of  the  Twelfth  Amend- 
ment upon  the  relative  influence  of  large  and  small  States  in  choosing  a 
President,  and  upon  the  office  of  Vice-President,  was  accurately  forecast 
in  the  debates  from  which  the  following  extracts  are  taken. 

65.  The  Election  of  1801. 
(a)  Bayard  to  Hamilton} 

Washington,  January  7th,  1801. 

...  I  assure  you,  sir,  there  appears  to  be  a  strong  inclina- 
tion in  a  majority  of  the  federal  party  to  support  Mr.  Burr. 
The  current  has  already  acquired  considerable  force,  and  mani- 
festly increasing.  The  vote  which  the  representation  of  a  State 
enables  me  to  give  v^ould  decide  the  question  in  favor  of  Mr. 
Jefferson.  At  present  I  am  by  no  means  decided  as  to  the 
object  of  preference.  If  the  federal  party  should  take  up  Mr. 
Burr,  I  ought  certainly  to  be  impressed  with  the  most  undoubt- 
^  Works  of  Alexander  Hamilton  (Hamilton  ed.),  vi,  506-07. 


k 


ORIGIN  OF  TWELFTH  AMENDMENT   215 

ing  conviction  before  I  separated  myself  from  them.  With 
respect  to  the  personal  qualities  of  the  competitors,  I  should 
fear  as  much  from  the  sincerity  of  Mr.  Jefferson  (if  he  is  sincere), 
as  from  the  want  of  probity  in  Mr.  Burr.  There  would  be  really 
cause  to  fear  that  the  government  would  not  survive  the  course 
of  moral  and  political  experiments  to  which  it  would  be  sub- 
jected in  the  hands  of  Mr.  Jefferson.  But  there  is  another  view 
of  the  subject  which  gives  me  some  inclination  in  favor  of  Burr. 
I  consider  the  State  ambition  of  Virginia  as  the  source  of  pre- 
sent party.  The  faction  who  govern  that  State,  aim  to  govern 
the  United  States.  Virginia  will  never  be  satisfied  but  when 
this  state  of  things  exists.  If  Burr  should  be  the  President,  they 
will  not  govern,  and  his  acceptance  of  the  office,  which  would 
disappoint  their  views,  which  depend  upon  Jefferson,  would,  I 
apprehend,  immediately  create  a  schism  in  the  party  which 
would  soon  rise  into  open  opposition. 

I  cannot  deny,  however,  that  there  are  strong  considerations, 
which  give  a  preference  to  Mr.  Jefferson.  The  subject  admits 
of  many  doubtful  views,  and  before  I  resolve  on  the  part  I  shall 
take,  I  shall  wait  the  approach  of  the  crisis  which  may  prob- 
ably bring  with  it  circumstances  decisive  of  the  event.  The 
federal  party  meet  on  Friday,  for  the  purpose  of  forming  a 
resolution  as  to  their  line  of  conduct.  I  have  not  the  least  doubt 
of  their  agreeing  to  support  Burr.  .  .  . 

(b)  Bayard  to  Hamilton} 

Washington,  8th  March,  1801. 

...  In  the  origin  of  the  business  I  had  contrived  to  lay  hold 
of  all  the  doubtful  votes  in  the  House,  which  enabled  me, 
according  to  views  which  presented  themselves,  to  protract  or 
terminate  the  controversy. 

This  arrangement  was  easily  made,  from  the  opinion  readily 
adopted  from  the  consideration,  that  representing  a  small 
State  without  resources  which  could  supply  the  means  of  self- 
protection,  I  should  not  dare  to  proceed  to  any  length  which 
would  jeopardize  the  constitution  or  the  safety  of  any  State. 
—       *  Works  of  Alexander  Hamilton  (Hamilton  ed.),  vi,  522-24. 


2i6        THE  FEDERAL  GOVERNMENT 

When  the  experiment  was  fully  made,  and  acknowledged  upon 
all  hands  to  have  completely  ascertained  that  Burr  was  re- 
solved not  to  commit  himself,  and  that  nothing  remained  but 
to  appoint  a  President  by  law,  or  leave  the  government  with- 
out one,  I  came  out  with  the  most  explicit  and  determined 
declaration  of  voting  for  Jefferson.  You  cannot  well  imagine 
the  clamor  and  vehement  invective  to  which  I  was  subjected 
for  some  days.  We  had  several  caucuses.  All  acknowledged 
that  nothing  but  desperate  measures  remained,  which  several 
were  disposed  to  adopt,  and  but  few  were  willing  openly  to 
disapprove.  We  broke  up  each  time  in  confusion  and  discord, 
and  the  manner  of  the  last  ballot  was  arranged  but  a  few 
minutes  before  the  ballot  was  given.  Our  former  harmony, 
however,  has  since  been  restored. 

The  public  declarations  of  my  intention  to  vote  for  Jefferson, 
to  which  I  have  alluded,  were  made  without  a  general  consulta- 
tion, knowing  that  it  would  be  an  easier  task  to  close  the 
breach  which  I  foresaw,  when  it  was  the  result  of  an  act  done 
without  concurrence,  than  if  it  had  proceeded  from  one  against 
a  decision  of  the  party.  Had  it  not  been  for  a  single  gentleman 
from  Connecticut,  the  eastern  States  would  finally  have  voted 
in  blank,  in  the  same  manner  as  done  by  South  Carolina  and 
Delaware;  but,  because  he  refused,  the  rest  of  the  delegation 
refused;  and  because  Connecticut  insisted  on  continuing  the 
ballot  for  Burr,  New  Hampshire,  Massachusetts,  and  Rhode 
Island,  refused  to  depart  from  their  former  vote. 

The  means  existed  of  electing  Burr,  but  this  required  his 
co-operation.  By  deceiving  one  man  (a  great  blockhead),  and 
tempting  two  (not  incorruptible),  he  might  have  secured  a 
majority  of  the  States.  ... 

66.  Debate  in  the  Senate  on  the  Proposed  Amendment.^ 

Mr.  White  of  Delaware: —  The  United  States  are  now 
divided,  and  will  probably  continue  so,  into  two  great  political 
parties;  whenever,  under  this  amendment,  a  Presidential  elec- 
tion shall  come  round,  and  the  four  rival  candidates  be  pro- 

^  December  2, 1803.  Annals  of  Congress,  8  Cong.,  i  Sess.,  141-84  passim. 


ORIGIN  OF  TWELFTH  AMENDMENT   217 

posed,  two  of  them  only  will  be  voted  for  as  President  —  one 
of  these  two  must  be  the  man ;  the  chances  in  favor  of  each  will 
be  equal.  Will  not  this  increased  probability  of  success  afford 
more  than  double  the  inducement  to  those  candidates,  and 
their  friends,  to  tamper  with  the  Electors,  to  exercise  intrigue, 
bribery,  and  corruption,  as  in  an  election  upon  the  present 
plan,  where  the  whole  four  would  be  voted  for  alike,  where  the 
chances  against  each  are  as  three  to  one,  and  it  is  totally  uncer- 
tain which  of  the  gentlemen  may  succeed  to  the  high  ofl&ce? 
And  there  must,  indeed,  be  a  great  scarcity  of  character  in  the 
United  States,  when,  in  so  extensive  and  populous  a  country, 
four  citizens  cannot  be  found,  either  of  them  worthy  even  of  the 
Chief  Magistracy  of  the  nation.  But,  Mr,  President,  I  have 
never  yet  seen  the  great  inconvenience  that  has  been  so  much 
clamored  about,  and  that  will  be  provided  against  in  future  by 
substituting  this  amendment.  There  was,  indeed,  a  time  when 
it  became  necessary  for  the  House  of  Representatives  to  elect, 
by  ballot,  a  President  of  the  United  States  from  the  two 
highest  in  vote,  and  they  were  engaged  here  some  days,  as  I 
have  been  told,  in  a  very  good-humored  way,  in  the  exercise 
of  that  constitutional  right.  ...  I  will  not  undertake  to  say 
that  there  was  no  danger  apprehended  on  that  occasion.  I 
know  many  of  the  friends  of  the  Constitution  had  their  fears; 
the  experiment  however  proved  them  groundless ;  but  what  was 
the  danger  apprehended  pending  the  election  in  the  House  of 
Representatives?  Was  it  that  they  might  choose  Colonel  Burr 
or  Mr.  Jefferson  President?  Not  at  all;  they  had,  notwithstand- 
ing what  had  been  said  on  this  subject  by  the  gentleman  from 
Maryland,  (Mr.  Wright)  a  clear  constitutional  right  to  choose 
either  of  them,  as  much  so  as  the  Electors  in  the  several  States 
had  to  vote  for  them  in  the  first  instance;  the  particular  man 
was  a  consideration  of  but  secondary  importance  to  the  coun- 
try; the  only  ground  of  alarm  was,  lest  the  House  should 
separate  without  making  any  choice,  and  the  Government  be 
without  a  head,  the  consequences  of  which  no  man  could  well 
calculate.  The  present  attempt  ...  is  taking  advantage  of  a 
casualty  to  alter  the  Constitution  that  astonished  everyone 


2i8         THE  FEDERAL  GOVERNMENT 

when  it  happened,  and  that  no  man  can  imagine,  in  the  ordin- 
ary course  of  events,  will  ever  arise  again.  .  .  , 

It  has  of  late,  Mr.  President,  become  fashionable  to  attach 
very  little  importance  to  the  ofl&ce  of  Vice  President,  to  con- 
sider it  a  matter  but  of  small  consequence  who  the  man  may 
be;  to  view  his  post  merely  as  an  idle  post  of  honor,  and  the 
incumbent  as  a  cipher  in  the  Government ;  or  according  to  the 
idea  expressed  by  an  honorable  member  from  Georgia,  (Mr. 
Jackson,)  quoting,  I  believe,  the  language  of  some  Eastern 
politician,  as  a  fifth  wheel  to  a  coach ;  but  in  my  humble  opinion 
this  doctrine  is  both  incorrect  ajid  dangerous.  The  Vice  Presi- 
dent is  not  only  the  second  officer  of  Government  in  point  of 
rank,  but  of  importance,  and  should  be  a  man  possessing  and 
worthy  of  the  confidence  of  the  nation.  I  grant,  sir,  should  this 
designating  mode  of  election  succeed,  it  will  go  very  far  to 
destroy,  not  the  certain  or  contingent  duties  of  the  office,  for 
the  latter  by  this  resolution  are  considerably  extended,  but 
what  may  be  much  more  dangerous,  the  j>ersonal  consequence 
and  worth  of  the  officer;  by  rendering  the  Electors  more  indif- 
ferent about  the  reputation  and  qualification  of  the  candidate, 
seeing  they  vote  for  him  but  as  a  secondary  character;  and 
which  may  occasion  this  high  and  important  trust  to  be  de- 
posited in  very  unsafe  hands.  .  .  .  The  convention  in  con- 
structing this  part  of  the  Constitution,  in  settling  the  first  and 
second  offices  of  the  Government,  and  pointing  out  the  mode 
of  filling,  aware  of  the  probability  of  the  Vice  President  suc- 
ceeding to  the  office  of  President,  endeavored  to  attach  as  much 
importance  and  respectability  to  his  office  as  possible,  by  mak- 
ing it  uncertain  at  the  time  of  voting,  which  of  the  persons  voted 
for  should  be  President,  and  which  Vice  President;  so  as  to 
secure  the  election  of  the  best  men  in  the  country,  or  at  least 
those  in  whom  the  people  reposed  the  highest  confidence,  to  the 
two  offices —  thus  filling  the  office  of  Vice  President  with  one 
of  our  most  distinguished  citizens,  who  would  give  respect- 
ability to  the  Government,  and  in  case  of  the  Presidency  be- 
coming vacant,  having  at  his  post  a  man  constitutionally  en- 
titled to  succeed,  who  had  been  honored  with  the  second  largest 


ORIGIN  OF  TW^ELFTH  AMENDMENT   219 

number  of  the  suffrages  of  the  people  for  the  same  office,  and 
who  of  consequence  would  be  probably  worthy  of  the  place, 
■and  competent  to  its  duties.  Let  us  now,  Mr.  President,  exam- 
ine for  a  moment  the  certain  effect  of  the  change  about  to  be 
made,  or  what  must  be  the  operation  of  this  designating  prin- 
ciple, if  you  introduce  it  into  the  Constitution.    Now  the 
Elector  cannot  designate,  but  must  vote  for  two  persons  as 
President,  leaving  it  to  circumstances  not  %vithin  his  power  to 
control  which  shall  be  the  man:  of  course  he  will  select  two  char- 
acters, each  suitable  for  that  office,  and  the  second  highest  in 
vote  must  be  the  Vice  President;  but  upon  this  designating 
plan  the  pubUc  attention  will  be  entirely  engrossed  in  the 
election  of  the  President,  in  making  one  great  man.  The  eyes 
of  each  contending  party  will  be  fixed  exclusively  upon  their 
candidate  for  this  first  and  highest  office;  ...  the  Vice- 
Presidency  will  either  be  left  to  chance,  or  what  will  be  much 
worse,  prostituted  to  the  basest  purposes;  character,  talents, 
virtue,  and  merit,  will  not  be  sought  after  in  the  candidate. 
The  question  will  not  be  asked,  is  he  capable?  is  he  honest? 
But  can  he  by  his  name,  by  his  connections,  by  his  wealth,  by 
his  local  situation,  by  his  influence  or  his  intrigues,  best  pro- 
mote the  election  of  a  President?   He  will  be  made  a  mere 
stepping-stone  of  ambition.  Thus,  by  the  death  or  other  con- 
stitutional inability  of  the  President  to  do  the  duties  of  the 
ofl&ce,  you  may  find  at  the  head  of  your  Government,  as  First 
Magistrate  of  the  nation,  a  man  who  has  either  smuggled  or 
bought  himself  into  office;  who,  not  having  the  confidence  of  the 
people,  or  feeling  the  constitutional  responsibility  of  his  place, 
but  attributing  his  elevation  merely  to  accident,  and  conscious 
of  the  superior  claims  of  others,  will  be  without  restraint  upon 
his  conduct,  without  that  strong  inducement  to  consult  the 
wishes  of  the  people,  and  to  pursue  the  true  interests  of  the 
nation,  that  the  hope  of  popular  applause,  and  the  prospect  of 
re-election,  would  offer.  .  .  . 

Mr.  Tracy  of  Conn.  —  Nothing  can  be  more  obvious,  than 
the  intention  of  the  plan  adopted  by  our  Constitution  for 
choosing  a  President.   The  Electors  are  to  nominate  two  per- 


220        THE  FEDERAL  GOVERNMENT 

sons,  of  whom  they  cannot  know  which  will  be  President;  this 
circumstance  not  only  induces  them  to  select  both  from  the 
best  men;  but  gives  a  direct  advantage  into  the  hands  of  the- 
small  States  even  in  the  electoral  choice.  For  they  can  always 
select  from  the  two  candidates  set  up  by  the  Electors  of  large 
States,  by  throwing  their  votes  upon  their  favorite,  and  of 
course  giving  him  a  majority;  or,  if  the  Electors  of  the  large 
States  should,  to  prevent  this  effect,  scatter  their  votes  for  one 
candidate,  then  the  Electors  of  the  small  States  would  have  it  in 
their  power  to  elect  a  Vice  President.  So  that,  in  any  event,  the 
small  States  will  have  a  considerable  agency  in  the  election.  But 
if  the  discriminating  or  designating  principle  is  carried,  as  con- 
tained in  this  resolution,  the  whole,  or  nearly  the  whole  right  and 
agency  of  the  small  States,  in  the  electoral  choice  of  Chief  Magis- 
trate, is  destroyed,  and  their  chance  of  obtaining  a  federative 
choice  by  States,  if  not  destroyed,  is  very  much  diminished.  .  .  . 

The  whole  power  of  election  is  now  vested  in  the  two 
parties;  numbers  and  States,  or,  great  and  small  States;  and 
it  is  demonstration  itself,  if  you  increase  the  power  of  the  one, 
in  just  such  proportion  you  diminish  that  of  the  other.  Do  the 
gentlemen  suppose  that  the  public  will,  when  constitutionally 
expressed  by  a  majority  of  States,  in  pursuance  of  the  federa- 
tive principle  of  our  Government,  is  of  less  validity,  or  less 
binding  upon  the  community  at  large,  than  the  public  will 
expressed  by  a  popular  majority?  The  framersof  your  Constitu- 
tion, the  people  who  adopted  it,  meant,  that  the  public  will, 
in  the  choice  of  a  President,  should  be  expressed  by  Electors, 
if  they  could  agree,  and  if  not,  the  public  will  should  be  ex- 
pressed by  a  majority  of  the  States,  acting  in  their  federative 
capacity,  and  that  in  both  cases  the  expression  of  the  public 
will  should  be  equally  binding. 

It  is  pretended  that  the  public  will  can  never  properly  or 
constitutionally  be  expressed  by  a  majority  of  numbers  of  the 
people,  or  of  the  House  of  Representatives.  This  may  be  a 
pleasing  doctrine  enough  to  great  States;  but  it  is  certainly 
incorrect.  Our  Constitution  has  given  the  expression  of  the 
public  will,  in  a  variety  of  instances,  other  than  that  of  the 


ORIGIN  OF  TWELFTH  AMENDMENT   221 

choice  of  President,  into  very  different  hands  from  either  House 
of  Representatives  or  the  people  at  large.  The  President  and 
Senate,  and  in  many  cases  the  President  alone,  can  express  the 
public  will,  in  appointments  of  high  trust  and  responsibility, 
and  it  cannot  be  forgotten  that  the  President  sometimes 
expresses  the  public  will  by  removals.  Treaties,  highly  import- 
ant expressions  of  the  public  will,  are  made  by  the  President 
and  Senate;  and  they  are  the  supreme  law  of  the  land.  In  the 
several  States,  many  great  offices  are  filled,  and  even  the  Chief 
Magistracy,  by  various  modes  of  election.  The  public  will  is 
sometimes  expressed  by  pluralities  instead  of  majorities,  some- 
times by  both  branches  of  the  Legislatures,  and  sometimes  by 
one,  and  in  certain  contingencies,  elections  are  settled  by  lot. 
The  people  have  adopted  constitutions  containing  such  regu- 
lations, and  experience  has  proved  that  they  are  well  calculated 
to  preserve  their  liberties  and  promote  their  happiness.  From 
what  good  or  even  pardonable  motive,  then,  can  it  be  urged 
that  the  present  mode  of  electing  our  President  has  a  tendency 
to  counteract  the  pubHc  will?  Do  gentlemen  intend  to  destroy 
every  federal  feature  in  this  Constitution?  And  is  this  resolu- 
tion a  precursor  to  a  complete  consolidation  of  the  Union,  and 
to  the  establishment  of  a  simple  republic?  —  Or  will  it  suffice 
to  break  down  every  federative  feature  which  secures  to  one 
portion  of  the  Union,  to  the  small  States,  their  rights?  .  .  . 

Mr.  Taylor  of  Virginia.  —  This  idea  of  federalism  ought  to 
be  well  discussed  by  the  smaller  States,  before  they  will  suffer 
it  to  produce  the  intended  effect  —  that  of  exciting  their  jeal- 
ousy against  the  larger.  To  him  it  appeared  to  be  evidently 
incorrect.  Two  principles  sustain  our  Constitution :  one  a  major- 
ity of  the  people,  the  other  a  majority  of  the  States;  the  first 
was  necessary  to  preserve  the  liberty  or  sovereignty  of  the 
people;  the  last,  to  preserve  the  liberty  or  sovereignty  of  the 
States.  But  both  are  founded  in  the  principle  of  majority;  and 
the  effort  of  the  Constitution  is  to  preserve  this  principle  in 
relation  both  to  the  people  and  the  States,  so  that  neither 
species  of  sovereignty  or  independence  should  be  able  to  de- 
stroy the  other.  .  .  . 


222        THE  FEDERAL  GOVERNMENT 

For  this  great  purpose  certain  political  functions  are  assigned 
to  be  performed,  under  the  auspices  of  the  State  or  federal 
principle,  and  certain  others  under  the  popular  principle.  It 
was  the  intention  of  the  Constitution  that  these  functions 
should  be  performed  in  conformity  to  its  principle.  If  that 
principle  is  in  fact  a  government  of  a  minority,  then  these  func- 
tions ought  to  be  performed  by  a  minority.  When  the  federal 
principle  is  performing  a  function,  according  to  this  idea,  a 
majority  of  the  States  ought  to  decide.  And,  by  the  same  mode 
of  reasoning,  when  the  popular  principle  is  performing  a  func- 
tion, then  a  minority  [majority]  of  the  people  ought  to  decide. 
This  brings  us  precisely  to  the  question  of  the  amendment.  It 
is  the  intention  of  the  Constitution  that  the  popular  principle 
shall  operate  in  the  election  of  a  President  and  Vice-President. 
It  is  also  the  intention  of  the  Constitution  that  the  popular 
principle,  in  discharging  the  functions  committed  to  it  by  the 
Constitution,  should  operate  by  a  majority  and  not  by  a  minor- 
ity. That  the  majority  of  the  people  should  be  driven,  by  an 
unforeseen  state  of  parties,  to  the  necessity  of  relinquishing 
their  will  in  the  election  of  one  or  the  other  of  these  officers,  or 
that  the  principle  of  majority,  in  a  function  confided  to  the 
popular  will,  should  be  deprived  of  half  its  rights,  and  be  laid 
under  a  necessity  of  violating  its  duty  to  preserve  the  other 
half,  is  not  the  intention  of  the  Constitution.  .  .  . 

Sir,  it  could  never  have  been  the  intention  of  the  Constitu- 
tion to  produce  a  state  of  things  by  which  a  majority  of  the 
popular  principle  should  be  under  the  necessity  of  voting 
against  its  judgment  to  secure  a  President,  and  by  which  a 
minor  faction  should  acquire  a  power  capable  of  defeating  the 
majority  in  the  election  of  President,  or  of  electing  a  Vice 
President  contrary  to  the  will  of  the  electing  principle.  To 
permit  this  abuse  would  be  a  fraudulent  mode  of  defeating 
the  operation  of  the  popular  principle  in  this  election,  in  order 
to  transfer  it  to  the  federal  principle  —  to  disinherit  the  people 
for  the  sake  of  endowing  the  House  of  Representatives;  whereas 
it  was  an  accidental  and  not  an  artificial  disappointment  in  the 
election  of  a  President,  against  which  the  Constitution  intended 


ORIGIN  OF  TWELFTH  AMENDMENT   223 

to  provide.  A  fair  and  not  an  unfair  attempt  to  elect  was  pre- 
viously to  be  made  by  the  popular  principle,  before  the  elec- 
tion was  to  go  into  the  House  of  Representatives.  And  if  the 
people  of  all  the  States,  both  large  and  smiall,  should,  by  an 
abuse  of  the  real  design  of  the  Constitution,  be  bubbled  out  of 
the  election  of  executive  power,  by  leaving  to  them  the  nominal 
right  of  an  abortive  effort,  and  transferring  to  the  House  of 
Representatives  the  substantial  right  of  a  real  election,  nothing 
will  remain  but  to  corrupt  the  election  in  that  House  by  some 
of  those  abuses  of  which  elections  by  diets  are  susceptible,  to 
bestow  upon  executive  power  an  aspect  both  formidable  and 
inconsistent  with  the  principles  by  which  the  Constitution 
intended  to  mould  it. 

The  great  check  imposed  upon  executive  power  was  a  popu- 
lar mode  of  election;  and  the  true  object  of  jealousy,  which 
ought  to  attract  the  attention  of  the  people  of  every  State,  is 
any  circumstance  tending  to  diminish  or  destroy  that  check. 
It  was  also  a  primary  intention  of  the  Constitution  to  keep 
executive  power  independent  of  legislative;  and  although  a 
provision  was  made  for  its  election  by  the  House  of  Representa- 
tives in  a  possible  case,  that  possible  case  never  was  intended 
to  be  converted  into  the  active  rule,  so  as  to  destroy  in  a  degree 
the  line  of  separation  and  independency  between  the  executive 
and  legislative  power.  The  controversy  is  not  therefore  be- 
tween larger  and  smaller  States,  but  between  the  people  of 
every  State  and  the  House  of  Representatives.  Is  it  better  that 
the  people  —  a  fair  majority  of  the  popular  principle  — should 
elect  executive  power;  or,  that  a  minor  faction  should  be 
enabled  to  embarrass  and  defeat  the  judgment  and  will  of  this 
majority,  and  throw  the  election  into  the  House  of  Representa- 
tives? This  is  the  question.  .  .  . 

67.  The  Twelfth  Amendment} 

The  Electors  shall  meet  in  their  respective  states,  and  vote 
by  ballot  for  President  and  Vice-President,  one  of  whom,  at 

^  Revised  Statutes  of  the  United  States  (1878),  30.  This  amendment 
went  into  effect  September  25,  1804. 


224        THE  FEDERAL  GOVERNMENT 

least,  shall  not  be  an  inhabitant  of  the  same  state  with  them- 
selves; they  shall  name  in  their  ballots  the  person  voted  for  as 
President,  and  in  distinct  ballots  the  person  voted  for  as  Vice- 
President,  and  they  shall  make  distinct  lists  of  all  persons 
voted  for  as  President,  and  of  all  persons  voted  for  as  Vice- 
President,  and  of  the  number  of  votes  for  each,  which  lists  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the 
government  of  the  United  States,  directed  to  the  President  of 
the  Senate;  —  The  President  of  the  Senate  shall,  in  presence 
of  the  Senate  and  House  of  Representatives,  open  all  the  certi- 
ficates and  the  votes  shall  then  be  counted ;  — The  person 
having  the  greatest  number  of  votes  for  President,  shall  be  the 
President,  if  such  number  be  a  majority  of  the  whole  number 
of  Electors  appointed;  and  if  no  person  have  such  majority, 
then  from  the  persons  having  the  highest  numbers  not  exceed- 
ing three  on  the  Hst  of  those  voted  for  as  President,  the  House 
of  Representatives  shall  choose  immediately,  by  ballot,  the 
President.  But  in  choosing  the  President,  the  votes  shall  be 
taken  by  states,  the  representation  from  each  state  having  one 
vote;  a  quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  states,  and  a  majority  of  all 
the  states  shall  be  necessary  to  a  choice.  And  if  the  House  of 
Representatives  shall  not  choose  a  President  whenever  the 
right  of  choice  shall  devolve  upon  them,  before  the  fourth  day 
of  March  next  following,  then  the  Vice-President  shall  act  as 
President,  as  in  the  case  of  the  death  or  other  constitutional 
disability  of  the  President.  The  person  having  the  greatest 
number  of  votes  as  Vice-President,  shall  be  the  Vice-President, 
if  such  number  be  a  majority  of  the  whole  number  of  Electors 
appointed,  and  if  no  person  have  a  majority,  then  from  the 
two  highest  numbers  on  the  list,  the  Senate  shall  choose  the 
Vice-President;  a  quorum  for  the  purpose  shall  consist  of  two- 
thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice.  But  no  person 
constitutionally  ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  Vice-President  of  the  United  States. 


PART  FOUR.  THE   DEVELOPMENT  OF 
NATIONAL   SOVEREIGNTY 

CHAPTER  XXV 

THE   FEDERAL   COMPACT  AND  THE   DOCTRINE   OF   STRICT 
CONSTRUCTION 

The  fear  of  "consolidation,"  ever  present  in  the  minds  of  democrats 
like  Jefferson  in  the  early  years  of  the  Republic,  led  to  reiterated  emphasis 
upon  the  contractual  nature  of  the  Constitution,  the  principle  of  State 
sovereignty,  and  the  doctrine  of  strict  construction.  This  doctrine  is 
elaborated  by  Jefferson  in  his  opinion  on  the  constitutionality  of  the 
proposed  national  bank.  The  most  forcible  expression  of  Jeffersonian 
principles  is  contained  in  the  Kentucky  Resolutions  of  1798,  which  were 
drafted  by  Jefferson  and  adopted  by  the  legislature  of  that  State,  then 
controlled  by  his  partisans.  The  Kentucky  Resolutions  of  the  following 
year  suggest  "  the  rightful  remedy  "  for  usurpation  of  power  by  the  Federal 
Government;  but  Jefferson  was  not  disposed  to  elaborate  this  ultimate 
remedy.  He  was  content  "to  leave  the  matter  in  such  a  train  as  that  we 
may  not  be  committed  absolutely  to  push  the  matter  to  extremities,  & 
yet  may  be  free  to  push  as  far  as  events  will  render  prudent." 

68.  Jefferson  on  the  Constitutionality  of  a  National  Bank} 

...  I  consider  the  foundation  of  the  Constitution  as  laid  on 
this  ground:  That  "all  powers  not  delegated  to  the  United 
States,  by  the  Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  or  to  the  people."^  To  take  a  single 
step  beyond  the  boundaries  thus  specially  drawn  around  the 
powers  of  Congress,  is  to  take  possession  of  a  boundless  field 
of  power,  no  longer  susceptible  of  any  definition. 

The  incorporation  of  a  bank,  and  the  powers  assumed  by 
this  bill,  have  not,  in  my  opinion,  been  delegated  to  the  United 
States,  by  the  Constitution. 

I.  They  are  not  among  the  powers  specially  enumerated :  for 

1  Writings  of  Thomas  Jefferson  (Ford  ed.),  v,  285-87. 

2  The  twelfth  of  the  amendments  then  before  the  States  for  ratifica- 
tion; the  tenth  of  those  adopted. 


226  NATIONAL  SOVEREIGNTY 

these  are:  ist.  A  power  to  lay  taxes  for  the  purpose  of  paying 
the  debts  of  the  United  States;  but  no  debt  is  paid  by  this  bill, 
nor  any  tax  laid.  Were  it  a  bill  to  raise  money,  its  origination  in 
the  Senate  would  condemn  it  by  the  Constitution. 

2d.  "To  borrow  money."  But  this  bill  neither  borrows 
money  nor  ensures  the  borrowing  it.  The  proprietors  of  the 
bank  will  be  just  as  free  as  any  other  money  holders,  to  lend  or 
not  to  lend  their  money  to  the  public.  The  operation  proposed 
in  the  bill,  first,  to  lend  them  two  millions,  and  then  to  borrow 
them  back  again,  cannot  change  the  nature  of  the  latter  act, 
which  will  still  be  a  payment,  and  not  a  loan,  call  it  by  what 
name  you  please. 

3.  To  "regulate  commerce  with  foreign  nations,  and  among 
the  States,  and  with  the  Indian  tribes."  To  erect  a  bank,  and 
to  regulate  commerce,  are  very  different  acts.  He  who  erects  a 
bank,  creates  a  subject  of  commerce  in  its  bills;  so  does  he  who 
makes  a  bushel  of  wheat,  or  digs  a  dollar  out  of  the  mines;  yet 
neither  of  these  persons  regulates  commerce  thereby.  To  make 
a  thing  which  may  be  bought  and  sold,  is  not  to  prescribe  regu- 
lations  for  buying  and  selling.  Besides,  if  this  was  an  exercise 
of  the  power  of  regulating  commerce,  it  would  be  void,  as 
extending  as  much  to  the  internal  commerce  of  every  State, 
as  to  its  external.  For  the  power  given  to  Congress  by  the 
Constitution  does  not  extend  to  the  internal  regulation  of  the 
commerce  of  a  State,  (that  is  to  say  of  the  commerce  between 
citizen  and  citizen,)  which  remain  exclusively  with  its  own 
legislature;  but  to  its  external  commerce  only,  that  is  to  say, 
its  commerce  with  another  State,  or  with  foreign  nations,  or 
with  the  Indian  tribes.  Accordingly  the  bill  does  not  propose 
the  measure  as  a  regulation  of  trade,  but  as  "productive  of 
considerable  advantages  to  trade."  Still  less  are  these  powers 
covered  by  any  other  of  the  special  enumerations. 

II.  Nor  are  they  within  either  of  the  general  phrases,  which 
are  the  two  following:  — 

I.  To  lay  taxes  to  provide  for  the  general  welfare  of  the 
United  States,  that  is  to  say,  "to  lay  taxes  for  the  purpose  of 
providing  for  the  general  welfare."   For  the  laying  of  taxes  is 


THE  FEDERAL  COMPACT     227 

the  power,  and  the  general  welfare  the  purpose  for  which  the 
power  is  to  be  exercised.  They  are  not  to  lay  taxes  ad  libitum 
for  any  purpose  they  please;  but  only  to  pay  the  debts  or  provide 
for  the  welfare  of  the  Union.  In  like  manner,  they  are  not  to  do 
anything  they  please  to  provide  for  the  general  welfare,  but  only 
to  lay  taxes  for  that  purpose.  To  consider  the  latter  phrase, 
not  as  describing  the  purpose  of  the  first,  but  as  giving  a  distinct 
and  independent  power  to  do  any  act  they  please,  which  might 
be  for  the  good  of  the  Union,  would  render  all  the  preceding 
and  subsequent  enumerations  of  power  completely  useless. 

It  would  reduce  the  whole  instrument  to  a  single  phrase,  that 
of  instituting  a  Congress  with  power  to  do  whatever  would  be 
for  the  good  of  the  United  States;  and,  as  they  would  be  the 
sole  judges  of  the  good  or  evil,  it  would  be  also  a  power  to  do 
whatever  evil  they  please. 

It  is  an  established  rule  of  construction  where  a  phrase  will 
bear  either  of  two  meanings,  to  give  it  that  which  will  allow 
some  meaning  to  the  other  parts  of  the  instrument,  and  not  that 
which  would  render  all  the  others  useless.  Certainly  no  such 
universal  power  was  meant  to  be  given  them.  It  was  intended 
to  lace  them  up  straitly  within  the  enumerated  powers,  and 
those  without  which,  as  means,  these  powers  could  not  be 
carried  into  effect.  It  is  known  that  the  very  power  now  pro- 
posed as  a  means  was  rejected  as  an  end  by  the  Convention 
which  formed  the  Constitution.  A  proposition  was  made  to 
them  to  authorize  Congress  to  open  canals,  and  an  amendatory 
one  to  empower  them  to  incorporate.  But  the  whole  was 
rejected,  and  one  of  the  reasons  for  rejection  urged  in  debate 
was,  that  then  they  would  have  a  power  to  erect  a  bank,  which 
would  render  the  great  cities,  where  there  were  prejudices  and 
jealousies  on  the  subject,  adverse  to  the  reception  of  the  Consti- 
tution. 

2.  The  second  general  phrase  is,  *'  to  make  all  laws  necessary 
and  proper  for  carrying  into  execution  the  enumerated  powers." 
But  they  can  all  be  carried  into  execution  without  a  bank.  A 
bank  therefore  is  not  necessary,  and  consequently  not  author- 
ized by  this  phrase. 


228  NATIONAL  SOVEREIGNTY 

It  has  been  urged  that  a  bank  will  give  great  facility  or  con- 
venience in  the  collection  of  taxes.  Suppose  this  were  true:  yet 
the  Constitution  allows  only  the  means  which  are  ^'necessary,'" 
not  those  which  are  merely  "convenient"  for  effecting  the 
enumerated  powers.  If  such  a  latitude  of  construction  be  al- 
lowed to  this  phrase  as  to  give  any  non-enumerated  power,  it 
will  go  to  every  one,  for  there  is  not  one  which  ingenuity  may  not 
torture  into  a  convenience  in  some  instance  or  other,  to  some  one 
of  so  long  a  list  of  enumerated  powers.  It  would  swallow  up  all 
the  delegated  powers,  and  reduce  the  whole  to  one  power,  as  be- 
fore observed.  Therefore  it  was  that  the  Constitution  restrained 
them  to  the  necessary  means,  that  is  to  say,  to  those  means 
without  which  the  grant  of  power  would  be  nugatory 

69.  Kentucky  Resolutions  of  1798} 

I.  Resolved,  that  the  several  States  composing  the  United 
States  of  America,  are  not  united  on  the  principle  of  unUmited 
submission  to  their  general  government;  but  that  by  compact 
under  the  style  and  title  of  a  Constitution  for  the  United  States 
and  of  amendments  thereto,  they  constituted  a  general  govern- 
ment for  special  purposes,  delegated  to  that  government  cer- 
tain definite  powers,  reserving  each  State  to  itself,  the  residuary 
mass  of  right  to  their  own  self-government;  and  that  whenso- 
ever the  general  government  assumes  undelegated  powers,  its 
acts  are  unauthoritative,  void,  and  of  no  force:  That  to  this 
compact  each  State  acceded  as  a  State,  and  is  an  integral  party, 
its  co-States  forming,  as  to  itself,  the  other  party:  That  the 
government  created  by  this  compact  was  not  made  the  exclu- 
sive or  final  judge  of  the  extent  of  the  powers  delegated  to  itself; 
since  that  would  have  made  its  discretion,  and  not  the  Constitu- 
tion, the  measure  of  its  powers;  but  that  as  in  all  other  cases  of 
compact  among  parties  having  no  common  Judge,  each  party 
has  an  equal  right  to  judge  for  itself,  as  well  of  infractions  as  of 
the  mode  and  measure  of  redress. 

II.  Resolved,  that  the  Constitution  of  the  United  States  hav- 
ing delegated  to  Congress  a  power  to  punish  treason,  counter- 
^  Shaler,  Kentucky,  in  American  Commonwealths  Series,  409-16. 


THE  FEDERAL  COMPACT  229 

feiting  the  securities  and  current  coin  of  the  United  States, 
piracies  and  felonies  committed  on  the  high  seas,  and  offenses 
against  the  laws  of  nations,  and  no  other  crimes  whatever,  and 
it  being  true  as  a  general  principle,  and  one  of  the  amendments 
to  the  Constitution  having  also  declared  "that  the  powers  not 
delegated  to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  States,  are  reserved  to  the  States  respect- 
ively, or  to  the  people,"  therefore  also  the  same  act  of  Congress 
passed  on  the  14th  day  of  July,  1798,  and  entitled  "An  act  in 
addition  to  the  act  entitled  an  act  for  the  punishment  of  certain 
crunes  against  the  United  States;"  as  also  the  act  passed  by 
them  on  the  27th  day  of  June,  1798,  entitled  "An  act  to  punish 
frauds  committed  on  the  Bank  of  the  United  States"  (and  all 
other  their  acts  which  assume  to  create,  define,  or  punish  crimes 
other  than  those  enumerated  in  the  Constitution),  are  alto- 
gether void  and  of  no  force,  and  that  the  power  to  create, 
define,  and  punish  such  other  crimes  is  reserved,  and  of  right 
appertains  solely  and  exclusively  to  the  respective  States,  each 
within  its  own  Territory. 

III.  Resolved,  that  it  is  true  as  a  general  principle,  and  is  also 
expressly  declared  by  one  of  the  amendments  to  the  Constitu- 
tion that  "the  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively  or  to  the  people;"  and  that  no  power 
over  the  freedom  of  religion,  freedom  of  speech,  or  freedom  of 
the  press  being  delegated  to  the  United  States  by  the  Consti- 
tution, nor  prohibited  by  it  to  the  States,  all  lawful  powers 
respecting  the  same  did  of  right  remain,  and  were  reserved  to 
the  States,  or  to  the  people:  That  thus  was  manifested  their 
determination  to  retain  to  themselves  the  right  of  judging  how 
far  the  licentiousness  of  speech  and  of  the  press  may  be  abridged 
without  lessening  their  useful  freedom,  and  how  far  those 
abuses  which  cannot  be  separated  from  their  use  should  be 
tolerated  rather  than  the  use  be  destroyed;  and  thus  also  they 
guarded  against  all  abridgment  by  the  United  States  of  the 
freedom  of  religious  opinions  and  exercises,  and  retained  to 
themselves  the  right  of  protecting  the  same,  as  this  State,  by  a 


230  NATIONAL  SOVEREIGNTY 

law  passed  on  the  general  demand  of  its  citizens,  had  already 
protected  them  from  all  human  restraint  or  interference:  And 
that  in  addition  to  this  general  principle  and  express  declara- 
tion, another  and  more  special  provision  has  been  made  by  one 
of  the  amendments  to  the  Constitution  which  expressly  de- 
clares, that  "Congress  shall  make  no  law  respecting  an  estab- 
lishment of  religion,  or  prohibiting  the  free  exercise  thereof, 
or  abridging  the  freedom  of  speech,  or  of  the  press,"  thereby 
guarding  in  the  same  sentence,  and  under  the  same  words,  the 
freedom  of  religion,  of  speech,  and  of  the  press,  insomuch,  that 
whatever  violates  either,  throv/s  down  the  sanctuary  which 
covers  the  others,  and  that  Hbels,  falsehoods,  defamation 
equally  with  heresy  and  false  religion,  are  withheld  from  the 
cognizance  of  Federal  tribunals.  That  therefore  the  act  of  the 
Congress  of  the  United  States  passed  on  the  14th  day  of  July, 
1798,  entitled  "An  act  in  addition  to  the  act  for  the  punish- 
ment of  certain  crimes  against  the  United  States,"  which  does 
abridge  the  freedom  of  the  press,  is  not  law,  but  is  altogether 
void  and  of  no  effect. 

IV.  Resolved,  that  alien  friends  are  under  the  jurisdiction 
and  protection  of  the  laws  of  the  State  wherein  they  are;  that 
no  power  over  them  has  been  delegated  to  the  United  States, 
nor  prohibited  to  the  individual  States  distinct  from  their  power 
over  citizens ;  and  it  being  true  as  a  general  principle,  and  one 
of  the  amendments  to  the  Constitution  having  also  declared 
that  "the  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively,  or  to  the  people,"  the  act  of  the  Con- 
gress of  the  United  States  passed  on  the  22d  day  of  June,  1798, 
entitled  "An  act  concerning  aliens,"  which  assumes  power  over 
alien  friends  not  delegated  by  the  Constitution,  is  not  law,  but 
is  altogether  void  and  of  no  force. 
^  V.  Resolved,  that  in  addition  to  the  general  principle  as  well 
as  the  express  declaration,  that  powers  not  delegated  are 
reserved,  another  and  more  special  provision  inserted  in  the 
Constitution  from  abundant  caution  has  declared,  "that  the 
migration  or  importation  of  such  persons  as  any  of  the  States 


THE  FEDERAL  COMPACT  231 

now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited 
by  the  Congress  prior  to  the  year  1808."  That  this  Common- 
wealth does  admit  the  migration  of  alien  friends  described  as 
the  subject  of  the  said  act  concerning  aliens ;  that  a  provision 
against  prohibiting  their  migration  is  a  provision  against  all 
acts  equivalent  thereto,  or  it  would  be  nugatory;  that  to  re- 
move them  when  migrated  is  equivalent  to  a  prohibition  of 
their  migration,  and  is  therefore  contrary  to  the  said  provision 
of  the  Constitution,  and  void. 

VI.  Resolved,  that  the  imprisonment  of  a  person  under  the 
protection  of  the  laws  of  this  Commonwealth  on  his  failure  to 
obey  the  simple  order  of  the  President  to  depart  out  of  the 
United  States,  as  is  undertaken  by  the  said  act  entitled  "An 
act  concerning  aliens,"  is  contrary  to  the  Constitution,  one 
amendment  to  which  has  provided,  that  "no  person  shall  be 
deprived  of  liberty  without  due  process  of  law,"  and  that 
another  having  provided  "that  in  all  criminal  prosecutions, 
the  accused  shall  enjoy  the  right  to  a  public  trial  by  an  impar- 
tial jury,  to  be  informed  of  the  nature  and  cause  of  the  accusa- 
tion, to  be  confronted  with  the  witnesses  against  him,  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favour,  and 
to  have  the  assistance  of  counsel  for  his  defense,"  the  same  act 
undertaking  to  authorize  the  President  to  remove  a  person 
out  of  the  United  States  who  is  under  the  protection  of  the  law, 
on  his  own  suspicion,  without  accusation,  without  jury,  without 
public  trial,  without  confrontation  of  the  witnesses  against 
him,  without  having  witnesses  in  his  favour,  without  defense, 
without  counsel,  is  contrary  to  these  provisions  also  of  the 
Constitution,  is  therefore  not  law,  but  utterly  void  and  of  no 
force.  That  transferring  the  power  of  judging  any  person  who 
is  under  the  protection  of  the  laws,  from  the  courts  to  the 
President  of  the  United  States,  as  is  undertaken  by  the  same 
act  concerning  aliens,  is  against  the  article  of  the  Constitution 
which  provides,  that  "the  judicial  power  of  the  United  States 
shall  be  vested  in  courts,  the  judges  of  which  shall  hold  their 
offices  during  good  behavior,"  and  that  the  said  act  is  void  for 
that  reason  also;  and  it  is  further  to  be  noted,  that  this  transfer 


232  NATIONAL  SOVEREIGNTY 

of  judiciary  power  is  to  that  magistrate  of  the  general  govern- 
ment who  already  possesses  all  the  executive,  and  a  qualified 
negative  in  all  the  legislative  powers. 

VII.  Resolved,  that  the  construction  applied  by  the  general 
government  (as  is  evinced  by  sundry  of  their  proceedings)  to 
those  parts  of  the  Constitution  of  the  United  States  which 
delegate  to  Congress  a  power  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises;  to  pay  the  debts,  and  provide  for  the 
common  defense,  and  general  welfare  of  the  United  States,  and 
to  make  all  laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  powers  vested  by  the  Constitution  in  the 
government  of  the  United  States,  or  any  department  thereof, 
goes  to  the  destruction  of  all  the  limits  prescribed  to  their  power 
by  the  Constitution:  That  words  meant  by  that  instrument  to 
be  subsidiary  only  to  the  execution  of  the  limited  powers  ought 
not  to  be  so  construed  as  themselves  to  give  unlimited  powers, 
nor  a  part  so  to  be  taken  as  to  destroy  the  whole  residue  of  the 
instrument:  That  the  proceedings  of  the  general  government 
under  color  of  these  articles  will  be  a  fit  and  necessary  subject 
for  revisal  and  correction  at  a  time  of  greater  tranquillity, 
while  those  specified  in  the  preceding  resolutions  call  for  imme- 
diate redress. 

VIII.  Resolved,  that  the  preceding  ResolutioQis  be  trans- 
mitted to  the  Senators  and  Representatives  in  Congress  from 
this  Commonwealth,  who  are  hereby  enjoined  to  present  the 
same  to  their  respective  Houses,  and  to  use  their  best  endeavors 
to  procure,  at  the  next  session  of  Congress,  a  repeal  of  the 
aforesaid  unconstitutional  and  obnoxious  acts. 

IX.  Resolved,  lastly,  that  the  Governor  of  this  Common- 
wealth be,  and  is  hereby  authorized  and  requested  to  com- 
municate the  preceding  Resolutions  to  the  Legislatures  of  the 
several  States,  to  assure  them  that  this  Commonwealth  con- 
siders Union  for  specified  National  purposes,  and  particularly 
for  those  specified  in  their  late  Federal  Compact,  to  be  friendly 
to  the  peace,  happiness,  and  prosperity  of  all  the  States:  that 
faithful  to  that  compact  according  to  the  plain  intent  and 
meaning  in  which  it  was  understood  and  acceded  to  by  the 


THE  FEDERAL  COMPACT  233 

several  parties,  it  is  sincerely  anxious  for  its  preservation:  that 
it  does  also  believe,  that  to  take  from  the  States  all  the  powers 
of  self-government,  and  transfer  them  to  a  general  and  con- 
solidated government,  without  regard  to  the  special  delegations 
and  reservations  solemnly  agreed  to  in  that  compact,  is  not  for 
the  peace,  happiness,  or  prosperity  of  these  States :  And  that, 
therefore,  this  Commonwealth  is  determined,  as  it  doubts  not 
its  co-States  are,  tamely  to  submit  to  undelegated  and  conse- 
quently unlimited  powers  in  no  man  or  body  of  men  on  earth : 
that  if  the  acts  before  specified  should  stand,  these  conclusions 
would  flow  from  them ;  that  the  general  government  may  place 
any  act  they  think  proper  on  the  list  of  crimes  and  punish  it 
themselves,  whether  enumerated  or  not  enumerated  by  the 
Constitution  as  cognizable  by  them:  that  they  may  transfer 
its  cognizance  to  the  President  or  any  other  person,  who  may 
himself  be  the  accuser,  counsel,  judge,  and  jury,  whose  sus- 
picions may  be  the  evidence,  his  order  the  sentence,  his  officer 
the  executioner,  and  his  breast  the  sole  record  of  the  transac- 
tion: that  a  very  numerous  and  valuable  description  of  the 
inhabitants  of  these  States  being  by  this  precedent  reduced  as 
outlaws  to  the  absolute  dominion  of  one  man,  and  the  barrier 
of  the  Constitution  thus  swept  away  from  us  all,  no  rampart 
now  remains  against  the  passions  and  the  powers  of  a  majority 
of  Congress,  to  protect  from  a  like  exportation  or  other  more 
grievous  punishment  the  minority  of  the  same  body,  the  legis- 
latures, judges,  governors,  and  counselors  of  the  States,  nor 
their  other  peaceable  inhabitants  who  may  venture  to  reclaim 
the  constitutional  rights  and  liberties  of  the  State  and  people, 
or  who  for  other  causes,  good  or  bad,  may  be  obnoxious  to  the 
views  or  marked  by  the  suspicions  of  the  President,  or  be 
thought  dangerous  to  his  or  their  elections  or  other  interests, 
public  or  personal:  that  the  friendless  alien  has  indeed  been 
selected  as  the  safest  subject  of  a  first  experiment,  but  the 
citizen  will  soon  follow,  or  rather  has  already  followed:  for, 
already  has  a  sedition  act  marked  him  as  its  prey:  that  these 
and  successive  acts  of  the  same  character,  unless  arrested  on 
the  threshold,  may  tend  to  drive  these  States  into  revolution 


234  NATIONAL  SOVEREIGNTY 

and  blood,  and  will  furnish  new  calumnies  against  Republican 
governments,  and  new  pretexts  for  those  who  wish  it  to  be 
believed,  that  man  cannot  be  governed  but  by  a  rod  of  iron: 
that  it  would  be  a  dangerous  delusion  were  a  confidence  in  the 
men  of  our  choice  to  silence  our  fears  for  the  safety  of  our  rights: 
that  confidence  is  everywhere  the  parent  of  despotism:  free 
government  is  founded  in  jealousy  and  not  in  confidence;  it  is 
jealousy  and  not  confidence  which  prescribes  limited  Constitu- 
tions to  bind  down  those  whom  we  are  obliged  to  trust  with 
power:  that  our  Constitution  has  accordingly  fixed  the  limits 
to  which  and  no  further  our  confidence  may  go;  and  let  the 
honest  advocate  of  confidence  read  the  alien  and  sedition  acts, 
and  say  if  the  Constitution  has  not  been  wise  in  fixing  limits  to 
the  government  it  created,  and  whether  we  should  be  wise  in 
destroying  those  limits;  let  him  say  what  the  government  is  if 
it  be  not  a  tyranny,  which  the  men  of  our  choice  have  conferred 
on  the  President,  and  the  President  of  our  choice  has  assented 
to  and  accepted  over  the  friendly  strangers,  to  whom  the  mild 
spirit  of  our  country  and  its  laws  had  pledged  hospitality  and 
protection:  that  the  men  of  our  choice  have  more  respected  the 
bare  suspicions  of  the  President  than  the  solid  rights  of  inno- 
cence, the  claims  of  justification,  the  sacred  force  of  truth,  and 
the  forms  and  substance  of  law  and  justice.  In  questions  of 
power  then  let  no  more  be  heard  of  confidence  in  man,  but  bind 
him  down  from  mischief  by  the  claims  of  the  Constitution. 
That  this  Commonwealth  does  therefore  call  on  its  co-States 
for  an  expression  of  their  sentiments  on  the  acts  concerning 
aUens,  and  for  the  punishment  of  certain  crimes  herein  before 
specified,  plainly  declaring  whether  these  acts  are  or  are  not 
authorized  by  the  Federal  Compact.  And  it  doubts  not  that 
their  sense  will  be  so  announced  as  to  prove  their  attachment 
unaltered  to  limited  government,  whether  general  or  particular, 
and  that  the  rights  and  liberties  of  their  co-States  will  be 
exposed  to  no  dangers  by  remaining  embarked  on  a  common 
bottom  with  their  own:  That  they  will  concur  with  this  Com- 
monwealth in  considering  the  said  acts  so  palpably  against  the 
Constitution  as  to  amount  to  an  undisguised  declaration,  that 


THE   FEDERAL  COMPACT  235 

the  compact  is  not  meant  to  be  the  measure  of  the  powers  of 
the  general  government,  but  that  it  will  proceed  in  the  exercise 
over  these  States  of  all  powers  whatsoever:  That  they  will  view 
this  as  seizing  the  rights  of  the  States  and  consolidating  them 
in  the  hands  of  the  general  government  with  a  power  assumed 
to  bind  the  States  (not  merely  in  cases  made  Federal)  but  in 
all  cases  whatsoever,  by  laws  made,  not  with  their  consent, 
but  by  others  against  their  consent:  That  this  would  be  to 
surrender  the  form  of  government  we  have  chosen,  and  to  live 
under  one  deriving  its  powers  from  its  own  will,  and  not  from 
our  authority;  and  that  the  co-States,  recurring  to  their 
natural  right  in  cases  not  made  Federal,  will  concur  in  declar- 
ing these  acts  void  and  of  no  force,  and  will  each  unite  with  this 
Commonwealth  in  requesting  their  repeal  at  the  next  session  of 
Congress. 

70.  Kentucky  Resolutions  of  ijgg.^ 

Resolved,  That  this  Commonwealth  considers  the  Federal 
Union,  upon  the  terms  and  for  the  purposes  specified  in  the  late 
compact,  conducive  to  the  liberty  and  happiness  of  the  several 
States :  That  it  does  now  unequivocally  declare  its  attachment 
to  the  Union,  and  to  that  compact,  agreeably  to  its  obvious 
and  real  intention,  and  will  be  among  the  last  to  seek  its  dis- 
solution: That  if  those  who  administer  the  General  Govern- 
ment be  permitted  to  transgress  the  limits  fixed  by  that  com- 
pact, by  a  total  disregard  to  the  special  delegations  of  power 
therein  contained,  an  annihilation  of  the  State  Governments, 
and  the  creation  upon  their  ruins  of  a  General  Consolidated 
Government,  will  be  the  inevitable  consequence:  That  the 
principle  and  construction  contended  for  by  sundry  of  the  state 
legislatures,  that  the  General  Government  is  the  exclusive 
judge  of  the  extent  of  the  powers  delegated  to  it,  stop  nothing 
[short]  of  despotism  —  since  the  discretion  of  those  who  admin- 
ister the  government,  and  not  the  Constitution,  would  be  the 
measure  of  their  powers:  That  the  several  states  who  formed 
that  instrument  being  sovereign  and  independent,  have  the 
^  Elliot,  Debates,  iv,  570-72. 


236  NATIONAL  SOVEREIGNTY 

unquestionable  right  to  judge  of  the  infraction;  and,  That  a 
Nullification  hy  those  sovereignties,  of  all  unauthorized  acts  done 
under  color  of  that  instrument  is  the  rightful  remedy;  That  this 
Commonwealth  does,  under  the  most  deliberate  reconsidera- 
tion, declare,  that  the  said  Alien  and  Sedition  Laws  are,  in  their 
opinion,  palpable  violations  of  the  said  Constitution ;  and,  how- 
ever cheerfully  it  may  be  disposed  to  surrender  its  opinion  to  a 
majority  of  its  sister  states,  in  matters  of  ordinary  or  doubtful 
policy,  yet,  in  no  [so]  momentous  regulations  like  the  present, 
which  so  vitally  wound  the  best  rights  of  the  citizen,  it  would 
consider  a  silent  acquiescence  as  highly  criminal :  That  although 
this  commonwealth,  as  a  party  to  the  federal  compact,  will  bow 
to  the  laws  of  the  Union,  yet,  it  does,  at  the  same  [time]  declare, 
that  it  will  not  now,  or  ever  hereafter,  cease  to  oppose  in  a 
constitutional  manner,  every  attempt  at  what  quarter  soever  of- 
fered, to  violate  that  compact.  And,  finally,  in  order  that  no  pre- 
text or  arguments  may  be  drawn  from  a  supposed  acquiescence, 
on  the  part  of  this  Commonwealth  in  the  constitutionality  of 
those  laws,  and  be  thereby  used  as  precedents  for  similar  future 
violations  of  the  Federal  compact  —  this  Commonwealth  does 
now  enter  against  them  its  solemn  PROTEST. 


CHAPTER  XXVI 

THE  POWER  TO  ACQUIRE  TERRITORY  AND  TO  GOVERN 
ACQUIRED  TERRITORY 

The  purchase  of  the  province  of  Louisiana  by  the  Jefferson  administra- 
tion was  in  direct  violation  of  the  doctrines  of  that  great  party  leader.  The 
whole  incident  is  an  excellent  illustration  of  the  manner  in  which  the 
Constitution  has  been  expanded,  not  only  by  that  "subtle  corps  of  sap- 
pers and  miners,"  as  Jefferson  called  the  judiciary,  but  also  by  the  execu- 
tive branch  of  the  Government.  The  power  assumed  by  Congress  over 
the  territory  thus  acquired  is  an  equally  good  example  of  the  develop- 
ment of  the  Constitution  through  congressional  action.  Subsequently, 
the  Supreme  Court  sustained  the  action  of  both  the  executive  and  the 
legislative  branches  of  the  Government. 

71.  Jefferson  on  the  Purchase  of  Louisiana} 

.  .  .  The  Constitution  has  made  no  provision  for  holding 
foreign  territory,  still  less  for  incorporating  foreign  nations  into 
the  Union.  The  Executive,  in  seizing  the  fugitive  occurrence 
which  so  much  advances  the  good  of  the  country,  has  done  an 
act  beyond  the  Constitution.  The  Legislators,  in  casting  be- 
hind them  metaphysical  subtleties  and  risking  themselves  like 
faithful  servants,  must  ratify  and  pay  for  it  and  throw  them- 
selves on  their  country  for  doing  for  them  unauthorized  what 
we  know  they  would  have  done  for  themselves,  had  they  been 
in  a  situation  to  do  it.  .  .  . 

72.  Senator  Taylor  on  the  Louisiana  Treaty} 

There  have  been,  Mr.  President,  two  objections  made  against 
the  treaty;  one  that  the  United  States  cannot  constitutionally 
acquire  territory;  the  other,  that  the  treaty  stipulates  for  the 
admission  of  a  new  State  into  the  Union;  a  stipulation  which 
the  treaty-making  power  is  unable  to  comply  with.  To  these  ob- 
jections I  shall  endeavor  to  give  answers  not  heretofore  urged. 

^  Thomas  Jefferson  to  John  C.  Breckenridge,  August  12,  1803.  Writ- 
ings of  Thomas  Jefferson  (Washington  ed.),  iv,  500-01. 

*  November  3,  1803.  Annals  of  Congress,  8  Cong.,  i  Sess.,  49-52. 


238  NATIONAL  SOVEREIGNTY 

Before  a  confederation,  each  State  in  the  Union  possessed  a 
right,  as  attached  to  sovereignty,  of  acquiring  territory,  by 
war,  purchase,  or  treaty.  This  right  must  be  either  still  pos- 
sessed, or  forbidden  both  to  each  State  and  to  the  General 
Government,  or  transferred  to  the  General  Government.  It  is 
not  possessed  by  the  States  separately,  because  war  and  com- 
pacts with  foreign  Powers  and  with  each  other  are  prohibited 
to  a  separate  State;  and  no  other  means  of  acquiring  territory 
exist.  By  depriving  every  State  of  the  means  of  exercising  the 
right  of  acquiring  territory,  the  Constitution  has  deprived  each 
separate  State  of  the  right  itself.  Neither  the  means  nor  the 
right  of  acquiring  territory  are  forbidden  to  the  United  States; 
on  the  contrary,  in  the  fourth  article  of  the  Constitution,  Con- 
gress is  empowered  "to  dispose  of  and  regulate  the  territory 
belonging  to  the  United  States."  This  recognises  the  right  of 
the  United  States  to  hold  territory.  The  means  of  acquiring 
territory  consist  of  war  and  compact;  both  are  expressly  sur- 
rendered to  Congress  and  forbidden  to  the  several  States;  and 
no  right  in  a  separate  State  to  hold  territory  without  its  limits 
is  recognised  by  the  Constitution,  nor  any  mode  of  effecting  it 
possible,  consistent  mth  it.  The  means  of  acquiring  and  the 
right  of  holding  territory,  being  both  given  to  the  United 
States,  and  prohibited  to  each  State,  it  follows  that  these 
attributes  of  sovereignty  once  held  by  each  State  are  thus 
transferred  to  the  United  States;  and  that,  if  the  means  of 
acquiring  and  the  right  of  holding,  are  equivalent  to  the  right 
of  acquiring  territory,  then  this  right  merged  from  the  separate 
States  to  the  United  States,  as  indispensably  annexed  to  the 
treaty-making  power,  and  the  power  of  making  war ;  or ,  indeed,  is 
literally  given  to  the  General  Government  by  the  Constitution. 

Havmg  proved,  sir,  that  the  United  States  may  constitu- 
tionally acquire,  hold,  dispose  of,  and  regulate  territory,  the 
other  objection  to  be  considered  is,  whether  the  third  article 
of  the  treaty  does  stipulate  that  Louisiana  shall  be  erected  into 
a  State?  It  is  conceded  that  the  treaty-making  power,  cannot, 
by  treaty,  erect  a  new  State,  however  they  may  stipulate  for  it. 
I  premise,  that  in  the  construction  of  this  article,  it  is  proper 


POWER  IN  REGARD  TO  TERRITORY    239 

to  recollect  that  the  negotiators  must  be  supposed  to  have 
understood  our  Constitution.  It  became  very  particularly 
their  duty  to  do  so,  because,  in  this  article  itself,  they  have 
recited  "the  principles  of  the  Constitution"  as  their  guide. 
Hence,  it  is  obvious,  they  did  not  intend  to  infringe,  but  to 
adhere  to  those  principles,  and  therefore,  if  the  article  will 
admit  of  a  construction  consistent  with  this  presumable  know- 
ledge and  intention  of  the  negotiators,  the  probability  of  its 
accuracy  will  be  greater  than  one  formed  in  a  supposition  that 
the  negotiators  were  either  ignorant  of  that  which  they  ought 
to  have  known,  or  that  they  fraudulently  professed  a  purpose 
which  they  really  intended  to  defeat.  The  following  construc- 
tion is  reconcilable  with  what  the  negotiators  ought  to  have 
known,  and  with  what  they  professed  to  intend. 

Recollect,  sir,  that  it  has  been  proved  that  the  United  States 
may  acquire  territory.  Territory,  so  acquired,  becomes  from 
the  acquisition  itself  a  portion  of  the  territories  of  the  United 
States,  or  may  be  united  with  their  territories  without  being 
erected  into  a  State.  An  union  of  territory  is  one  thing;  of 
States,  another.  Both  are  exemplified  by  an  actual  existence. 
The  United  States  possess  territory,  comprised  in  the  union  of 
territory,  and  not  in  the  union  of  States.  Congress  is  empowered 
to  regulate  or  dispose  of  territorial  sections  of  the  Union,  and 
have  exercised  the  power;  but  it  is  not  empowered  to  regulate 
or  dispose  of  State  sections  of  the  Union.  The  citizens  of  these 
territorial  sections  are  citizens  of  the  United  States,  and  they 
have  all  the  rights  of  citizens  of  the  United  States;  but  such 
rights  do  not  include  those  political  rights  arising  from  State 
compacts  or  governments,  which  are  dissimilar  in  different 
States.  Supposing  the  General  Government  or  treaty-making 
power  have  no  right  to  add  or  unite  States  and  State  citizens 
to  the  Union,  yet  they  have  a  power  of  adding  or  uniting  to  it, 
territory  and  territorial  citizens  of  the  United  States. 

The  territory  is  ceded  by  the  first  article  of  the  treaty.  It 
will  no  longer  be  denied  that  the  United  States  may  constitu- 
tionally acquire  territory.  The  third  article  declares  that  "the 
inhabitants  of  the  ceded  territory  shall  be  incorporated  in  the 


240  NATIONAL  SOVEREIGNTY 

Union  of  the  United  States."   And  these  words  are  said  to 
require  the  territory  to  be  erected  into  a  State.  This  they  do 
not  express,  and  the  words  are  literally  satisfied  by  incorporat- 
ing them  into  the  Union  as  a  territory,  and  not  as  a  State.  The 
Constitution  recognises  and  the  practice  warrants  an  incorpo- 
ration of  a  Territory  and  its  inhabitants  into  the  Union,  with- 
out admitting  either  as  a  State.  And  this  construction  of  the 
first  member  of  the  article  is  necessary  to  shield  its  two  other 
members  from  a  charge  of  surplusage,  and  even  absurdity. 
For  if  the  words  "  the  inhabitants  of  the  ceded  territory  shall  be 
incorporated  in  the  Union  of  the  United  States"  intended  that 
Louisiana  and  its  inhabitants  should  become  a  State  in  the 
Union  of  States,  there  existed  no  reason  for  proceeding  to  stipu- 
late that  these  same  inhabitants  should  be  made  "  citizens  as 
soon  as  possible,  according  to  the  principles  of  the  Federal 
Constitution."  Their  admission  into  the  Union  of  States  would 
have  made  them  citizens  of  the  United  States.   Is  it  not  then 
absurd  to  suppose  that  the  first  member  of  this  third  article, 
intended  to  admit  Louisiana  into  the  Union  as  a  State,  which 
would  instantly  entitle  the  inhabitants  to  the  benefit  of  the 
article  of  the  Constitution,  declaring  that  ''the  citizens  of 
each  State  shall  be  entitled  to  all  the  privileges  and  immunities 
of  citizens  in  the  several  States,"  and  yet  to  have  gone  on  to 
stipulate  for  citizenship,  under  the  limitation  "as  soon  as 
possible,  according  to  the  principles  of  the  Federal  Constitu- 
tion" after  it  had  been  bestowed  without  limitation?   Again; 
the  concluding  member  of  the  article  is  to  bestow  "protection 
in  the  mean  time;"  incorporating  this  stipulation,  and  the 
stipulation   for  citizenship,  with  the  construction  which  ac- 
cuses the  treaty  of  unconstitutionality,  the  article  altogether 
must  be  understood  thus,  "the  inhabitants  of  the  ceded  terri- 
tory shall  be  taken  into  the  Union  of  States,  which  will  in- 
stantly give  them  all  the  rights  of  citizenship,  after  which  they 
shall  be  made  citizens  as  soon  as  possible;  and  after  they  are 
taken  into  the  Union  of  States,  they  shall  be  protected  in  the 
interim  between  becoming  a  State  in  the  Union,  and  being 
made  citizens,  in  their  liberty,  property  and  religion." 


POWER  IN  REGARD  TO  TERRITORY    241 

By  supposing  the  first  member  of  the  article  to  require  that 
the  inhabitants  and  their  territory  shall  be  incorporated  in  the 
Union,  in  the  known  and  recognised  political  character  of  a 
Territory,  these  inconsistencies  are  avoided,  and  the  article 
reconciled  to  the  Constitution,  as  understood  by  the  opposers 
of  the  bill;  the  stipulation  also  for  citizenship  "as  soon  as 
possible"  according  to  the  principles  of  the  Constitution,  and 
the  delay  meditated  by  these  words,  and  the  subsequent  words 
"in  the  mean  time"  so  utterly  inconsistent  with  the  instanta- 
neous citizenship,  which  would  follow  an  admission  in  the 
Union  as  a  State,  are  both  fully  explained.  Being  incorporated 
in  the  Union  as  a  Territory,  and  not  as  a  State,  a  stipulation  for 
citizenship  became  necessary;  whereas  it  would  have  been 
unnecessary  had  the  inhabitants  been  incorporated  as  a  State, 
and  not  as  a  Territory.  And  as  they  were  not  to  be  invested 
with  citizenship  by  becoming  a  State,  the  delay  which  would 
occur  between  the  incorporation  of  the  Territory  into  the 
Union  and  the  arrival  of  the  inhabitants  to  citizenship  accord- 
ing to  the  principles  of  the  Constitution,  under  some  uniform 
rule  of  naturalization,  exhibited  an  interim  which  demanded 
the  concluding  stipulation,  for  "protection  in  the  meantime 
for  liberty,  property,  and  religion."  As  a  State  of  the  Union, 
they  would  not  have  needed  a  stipulation  for  the  safety  of  their 
"liberty,  property  and  religion;"  as  a  Territory,  this  stipula- 
tion would  govern  and  restrain  the  undefined  power  of  Con- 
gress to  make  "rules  and  regulations  for  Territories."  .  .  . 

73.  The  American  Insurance  Company  v.  Canter.^ 

Mr.  Chief  Justice  Marshall  said  in  part: 

.  .  .  The  course  which  the  argument  has  taken,  will  require 
that,  in  deciding  this  question,  the  court  should  take  into  view 
the  relation  in  which  Florida  stands  to  the  United  States. 

The  constitution  confers  absolutely  on  the  government  of 
the  Union  the  powers  of  making  war  and  of  making  treaties ; 
consequently,  that  government  possesses  the  power  of  acquiring 
territory,  either  by  conquest  or  by  treaty. 

*  Supreme  Court  of  the  United  States,  1828.   i  Peters,  511. 


242  NATIONAL  SOVEREIGNTY 

The  usage  of  the  world  is,  if  a  nation  be  not  entirely  sub- 
dued, to  consider  the  holding  of  conquered  territory  as  a  mere 
miUtary  occupation,  until  its  fate  shall  be  determined  at  the 
treaty  of  peace.  If  it  be  ceded  by  the  treaty,  the  acquisition  is 
confirmed,  and  the  ceded  territory  becomes  a  part  of  the  nation 
to  which  it  is  annexed,  either  on  the  terms  stipulated  in  the 
treaty  of  cession,  or  on  such  as  its  new  master  shall  impose. 
On  such  transfer  of  territory,  it  has  never  been  held  that  the 
relations  of  the  inhabitants  with  each  other  undergo  any  change. 
Their  relations  with  their  former  sovereign  are  dissolved,  and 
new  relations  are  created  between  them  and  the  government 
which  has  acquired  their  territory.  The  same  act  which  trans- 
fers their  country,  transfers  the  allegiance  of  those  who  remain 
in  it;  and  the  law,  which  may  be  denominated  political,  is 
necessarily  changed,  although  that  which  regulates  the  inter- 
course and  general  conduct  of  individuals,  remains  in  force 
until  altered  by  the  newly  created  power  of  the  state. 

On  the  2d  of  February,  1819,  Spain  ceded  Florida  to  the 
United  States.  The  6th  article  of  the  treaty  of  cession,  contains 
the  following  provision:  "The  inhabitants  of  the  territories 
which  his  Catholic  Majesty  cedes  to  the  United  States  by  this 
treaty,  shall  be  incorporated  in  the  Union  of  the  United  States, 
as  soon  as  may  be  consistent  with  the  principles  of  the  federal 
constitution,  and  admitted  to  the  enjoyment  of  the  privileges, 
rights,  and  immunities  of  the  citizens  of  the  United  States." 
This  treaty  is  the  law  of  the  land,  and  admits  the  inhabitants 
of  Florida  to  the  enjo>Tnent  of  the  privileges,  rights,  and  im- 
munities of  the  citizens  of  the  United  States.  It  is  unnecessary 
to  inquire  whether  this  is  not  their  condition,  independent  of 
stipulation.  They  do  not,  however,  participate  in  political 
power;  they  do  not  share  in  the  government  till  Florida  shall 
become  a  State.  In  the  meantime,  Florida  continues  to  be  a 
territory  of  the  United  States,  governed  by  \drtue  of  that  clause 
in  the  constitution  which  empowers  Congress  "  to  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States." 

Perhaps  the  power  of  governing  a  territory  belonging  to  the 


POWER  IN  REGARD  TO  TERRITORY    243 

United  States,  which  has  not,  by  becoming  a  State,  acquired 
the  means  of  self-government,  may  result  necessarily  from  the 
facts  that  it  is  not  within  the  jurisdiction  of  any  particular 
State,  and  is  within  the  power  and  jurisdiction  of  the  United 
States.  The  right  to  govern  may  be  the  inevitable  consequence 
of  the  right  to  acquire  territory.  Whichever  may  be  the  source 
whence  the  power  is  derived,  the  possession  of  it  is  unques- 
tioned. In  execution  of  it,  Congress,  in  1822,  passed  "an  act 
for  the  establishment  of  a  territorial  government  in  Florida," 
and  on  the  3d  of  March,  1823,  passed  another  act  to  amend  the 
act  of  1822.  Under  this  act,  the  territorial  legislature  enacted 
the  law  now  under  consideration.  .  .  . 

74.  Power  of  Congress  over  Acquired  Territory} 

The  House  resolved  itself  into  a  Committee  of  the  Whole  on 
the  bill  from  the  Senate, entitled,  "An  act  to  enable  the  Presi- 
dent of  the  United  States  to  take  possession  of  the  territories 
ceded  by  France  to  the  United  States,  by  the  treaty  concluded 
at  Paris  on  the  thirtieth  of  April  last,  and  for  other  purposes." 

[Sec.  2.  And  he  it  further  enacted,  That,  until  Congress  shall 
have  made  provision  for  the  temporary  government  of  the 
said  territories,  all  the  military,  civil,  and  judicial  powers, 
exercised  by  the  officers  of  the  existing  government  of  the  same, 
shall  be  vested  in  such  person  and  persons,  and  shall  be  exer- 
cised in  such  manner,  as  the  President  of  the  United  States 
shall  direct.] 

Mr.  R.  Griswold.  —  The  powers  proposed  to  be  conferred 
by  the  gentleman  are  without  limits.  It  may  be  necessary  for 
the  welfare  of  the  people,  to  secure  their  religion.  The  Presi- 
dent may  be,  therefore,  constituted  grand  inquisitor,  he  may 
also  be  made  a  king,  and  likewise  a  judge,  for  the  good  of  the 
people.  I  am  not,  said  Mr.  G.,  willing  myself  to  give  him  such 
extensive  powers.  .  .  . 

As  to  the  idea  of  some  gentlemen,  that  this  territory,  not 

^  Debate  in  the  House  of  Representatives,  November  3,  1803.  Annals 
of  Congress,  8  Cong.,  i  Sess.,  49-52. 


244  NATIONAL  SOVEREIGNTY 

being  a  part  of  the  United  States,  but  a  colony,  and  that  there- 
fore we  may  do  as  we  please  with  it,  it  is  not  correct.  If  we 
acquire  a  colony  by  conquest  or  purchase  —  and  I  believe  we 
may  do  both  —  it  is  not  consistent  with  the  Constitution  to 
delegate  to  the  President,  even  over  a  colony  thus  acquired, 
all  power,  legislative,  executive,  and  judicial;  for  this  would 
make  him  the  despot  of  the  colony. 

Mr.  Rodney.  —  There  is  a  wide  distinction  between  States 
and  Territories,  and  the  Constitution  appears  clearly  to  indi- 
cate it.  .  .  .  By  the  third  section  of  the  fourth  article  of  the 
Constitution,  it  is  declared  that "'  the  Congress  shall  have  power 
to  dispose  of  and  make  all  needful  rules  and  regulations  respect- 
ing the  territory  or  other  property  belonging  to  the  United 
States;  and  nothing  in  this  Constitution  shall  be  so  construed 
as  to  prejudice  any  claims  of  the  United  States  or  any  particu- 
lar State." 

This  provision  does  not  limit  or  restrain  the  authority  of 
Congress  with  respect  to  Territories,  but  vests  them  with  full 
and  complete  power  to  exercise  a  sound  discretion  generally  on 
the  subject.  .  .  . 

.  .  .  But  by  a  recurrence  to  the  ordinance  for  the  government 
of  that  Territory,  and  to  the  laws  of  Congress  subsequently  made, 
it  will  be  seen  that  Congress  have  conceived  themselves  to  be 
possessed  of  the  right  and  have  actually  exercised  the  power, 
to  alter  the  Territory,  by  adding  to  or  taking  from  it  as  they 
thought  proper,  and  by  making  rules  variant  from  those  under 
which  it  was  originally  organized.  .  .  .  Congress  has  a  power 
in  the  Territories,  which  they  cannot  exercise  in  States;  and 
that  the  limitations  of  power,  found  in  the  Constitution,  are 
applicable  to  States  and  not  to  Territories. 

75.  Sere  et  al.  v.  Pitot  et  al} 

Mr.  Chief  Justice  Marshall  for  the  Court  said  in  part: 
.  .  .  Whether  the  citizens  of  the  Territory  of  Orleans  are 
to  be  considered  as  the  citizens  of  a  State,  within  the  meaning 
of  the  constitution,  is  a  question  of  some  difficulty,  which 
^  Supreme  Court  of  the  United  States,  1810.  6  Cranch,  332. 


POWER  IN  REGARD  TO  TERRITORY    245 

would  be  decided,  should  one  of  them  sue  in  any  of  the  circuit 
courts  of  the  United  States.  The  present  inquiry  is  limited  to 
a  suit  brought  by  or  against  a  citizen  of  the  Territory,  in 
the  District  Court  of  Orleans.  The  power  of  governing  and  of 
legislating  for  a  Territory  is  the  inevitable  consequence  of  the 
right  to  acquire  and  to  hold  territory.  Could  this  position  be 
contested,  the  Constitution  of  the  United  States  declares  that 
''  Congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property 
belonging  to  the  United  States."  Accordingly,  we  find  Con- 
gress possessing  and  exercismg  the  absolute  and  undisputed 
power  of  governing  and  legislating  for  the  Territory  of  Orleans. 
Congress  has  given  them  a  legislative,  an  executive,  and  a  judi- 
ciary with  such  powers  as  it  has  been  their  will  to  assign  to 
those  departments  respectively.  .  .  . 

76.  New  Orleans  v.  Winter  et  al} 

Mr.  Chief  Justice  Marshall  for  the  Court  said  in  part: 
...  It  has  been  attempted  to  distinguish  a  Territory  from 
the  District  of  Columbia;  but  the  court  is  of  opinion,  that  this 
distinction  cannot  be  maintained.  They  may  differ  m  many 
respects,  but  neither  of  them  is  a  State,  in  the  sense  in  which 
that  term  is  used  in  the  Constitution.  Every  reason  assigned 
for  the  opinion  of  the  court,  that  a  citizen  of  Columbia  was  not 
capable  of  suing  in  the  courts  of  the  United  States,  under  the 
Judiciary  Act,  is  equally  applicable  to  a  citizen  of  a  Territory. 
Gabriel  Winter,  then,  being  a  citizen  of  the  Mississippi  Terri- 
tory, was  incapable  of  maintaining  a  suit  alone  in  the  Circuit 
Court  of  Louisiana.  .  .  . 

1  Supreme  Court  of  the  United  States,  1816.  i  Wheaton,  91. 


CHAPTER  XXVII 

THE  POWER   OF   THE     FEDERAL    JUDICIARY  TO  DECLARE 
ACTS   OF   CONGRESS   VOID 

In  the  case  of  Marbury  v.  Madison  the  Supreme  Court  took  under 
consideration  an  appUcation  by  one  WiUiam  Marbury  for  a  writ  of  man- 
damus to  be  directed  to  James  Madison,  Secretary  of  State  of  the  United 
States,  requiring  him  to  issue  to  the  plaintiff  a  commission  as  justice  of 
the  peace.  This  commission,  it  was  alleged,  had  been  duly  signed  by  the 
President  of  the  United  States  and  given  to  the  Secretary  of  State  for 
delivery.  The  delivery,  however,  had  not  been  made.  Chief  Justice 
Marshall  held  that  Marbury  was  entitled  to  his  commission  and  that  a 
writ  of  mandamus  was  a  proper  remedy.  The  Court  then  took  under 
consideration  the  further  question  whether  such  a  writ  could  issue  from 
the  Supreme  Court.  This  was  the  first  instance  in  which  the  Supreme 
Court  declared  against  the  validity  of  an  act  of  Congress. 

77.  Marbury  v.  Madison} 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the 
Court : 

The  act  to  establish  the  judicial  courts  of  the  United  States 
authorizes  the  supreme  court  "to  issue  writs  of  mandamus,  in 
cases  warranted  by  the  principles  and  usages  of  law,  to  any 
courts  appointed,  or  persons  holding  office,  under  the  authority 
of  the  United  States." 

The  Secretary  of  State,  being  a  person  holding  an  office 
under  the  authority  of  the  United  States,  is  precisely  within 
the  letter  of  the  description;  and  if  this  court  is  not  authorized 
to  issue  a  writ  of  mandamus  to  such  an  officer,  it  must  be  be- 
cause the  law  is  unconstitutional,  and  therefore  absolutely 
incapable  of  conferring  the  authority,  and  assigning  the  duties 
which  its  words  purport  to  confer  and  assign. 

The  constitution  vests  the  whole  judicial  power  of  the  United 
States  in  one  supreme  court,  and  such  inferior  courts  as  Con- 
gress shall,  from  time  to  time,  ordain  and  establish.  This  power 
is  expressly  extended  to  all  cases  arising  under  the  laws  of  the 
1  Supreme  Court  of  the  United  States,  1803.   i  Cranch,  137. 


POWER  OF  FEDERAL  JUDICIARY     247 

United  States;  and,  consequently,  in  some  form  may  be  exer- 
cised over  the  present  case;  because  the  right  claimed  is  given 
by  a  law  of  the  United  States. 

In  the  distribution  of  this  power  it  is  declared  that  "the 
supreme  court  shall  have  original  jurisdiction  in  all  cases  affect- 
ing ambassadors,  other  public  ministers  and  consuls,  and  those 
in  which  a  state  shall  be  a  party.  In  all  other  cases,  the  supreme 
court  shall  have  appellate  jurisdiction."  .  .  . 

To  enable  this  court,  then,  to  issue  a  mandamus,  it  must  be 
shown  to  be  an  exercise  of  appellate  jurisdiction,  or  to  be  neces- 
sary to  enable  them  to  exercise  appellate  jurisdiction.  .  .  . 

It  is  the  essential  criterion  of  appellate  jurisdiction,  that  it  re- 
vises and  corrects  the  proceedings  in  a  cause  already  instituted, 
and  does  not  create  that  cause.  Although,  therefore,  a  manda- 
mus may  be  directed  to  courts,  yet  to  issue  such  a  writ  to  an 
oflScer  for  the  delivery  of  a  paper,  is  in  effect  the  same  as  to 
sustain  an  original  action  for  that  paper,  and,  therefore,  seems 
not  to  belong  to  appellate,  but  to  original  jurisdiction.  Neither 
is  it  necessary  in  such  a  case  as  this,  to  enable  the  court  to  exer- 
cise its  appellate  jurisdiction. 

The  authority,  therefore,  given  to  the  supreme  court,  by  the 
act  establishing  the  judicial  courts  of  the  United  States,  to  issue 
writs  of  mandamus  to  public  officers,  appears  not  to  be  war- 
ranted by  the  constitution ;  and  it  becomes  necessary  to  inquire 
whether  a  jurisdiction  so  conferred  can  be  exercised. 

The  question  whether  an  act  repugnant  to  the  constitution 
can  become  the  law  of  the  land,  is  a  question  deeply  interest- 
ing to  the  United  States;  but,  happily,  not  of  an  intricacy  pro- 
portioned to  its  interest.  It  seems  only  necessary  to  recognize 
certain  principles,  supposed  to  have  been  long  and  well  estab- 
lished, to  decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their 
future  government,  such  principles  as,  in  their  opinion,  shall 
most  conduce  to  their  own  happiness,  is  the  basis  on  which  the 
whole  American  fabric  has  been  erected.  The  exercise  of  this 
original  right  is  a  very  great  exertion;  nor  can  it  nor  ought  it 
to  be  frequently  repeated.  The  principles,  therefore,  so  estab- 


248  NATIONAL  SOVEREIGNTY 

lished,  are  deemed  fundamental.  And  as  the  authority  from 
which  they  proceed  is  supreme,  and  can  seldom  act,  they  are 
designed  to  be  permanent. 

This  original  and  supreme  will  organizes  the  government, 
and  assigns  to  different  departments  their  respective  powers. 
It  may  either  stop  here,  or  establish  certain  limits  not  to  be 
transcended  by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  descrip- 
tion. The  powers  of  the  legislature  are  defined  and  limited; 
and  that  those  limits  may  not  be  mistaken,  or  forgotten,  the 
constitution  is  written.  To  what  purpose  are  powers  limited, 
and  to  what  purpose  is  that  hmitation  committed  to  writing, 
if  these  limits  may,  at  any  time,  be  passed  by  those  intended  to 
be  restrained?  The  distinction  between  a  government  with 
limited  and  unlimited  powers  is  abolished,  if  those  limits  do 
not  confine  the  persons  on  whom  they  are  imposed,  and  if  acts 
prohibited  and  acts  allowed  are  of  equal  obligation.  It  is  a 
proposition  too  plain  to  be  contested,  that  the  constitution 
controls  any  legislative  act  repugnant  to  it ;  or,  that  the  legis- 
lature may  alter  the  constitution  by  an  ordinary  act. 

Between  these  alternatives  there  is  no  middle  ground.  The 
constitution  is  either  a  superior  paramount  law,  unchangeable 
by  ordinary  means,  or  it  is  on  a  level  with  ordinary  legislative 
acts,  and,  like  other  acts,  is  alterable  when  the  legislature  shall 
please  to  alter  it. 

If  the  former  part  of  the  alternative  be  true,  then  a  legisla- 
tive act  contrary  to  the  constitution  is  not  law;  if  the  latter 
part  be  true,  then  written  constitutions  are  absurd  attempts, 
on  the  part  of  the  people,  to  limit  a  power  in  its  own  nature 
illimitable. 

Certainly  all  those  who  have  framed  written  constitutions 
contemplate  them  as  forming  the  fundamental  and  paramount 
law  of  the  nation,  and,  consequently,  the  theory  of  every  such 
government  must  be,  that  an  act  of  the  legislature,  repugnant 
to  the  constitution,  is  void. 

This  theory  is  essentially  attached  to  a  written  constitution, 
and  is  consequently  to  be  considered,  by  this  court,  as  one  of 


POWER  OF  FEDERAL  JUDICIARY     249 

the  fundamental  principles  of  our  society.  It  is  not,  therefore, 
to  be  lost  sight  of  in  the  further  consideration  of  this  subject. 

If  an  act  of  the  legislature,  repugnant  to  the  constitution,  is 
void,  does  it,  notwithstanding  its  invalidity,  bind  the  courts, 
and  oblige  them  to  give  it  effect?  Or,  in  other  words,  though  it 
be  not  law,  does  it  constitute  a  rule  as  operative  as  if  it  was  a 
law?  This  would  be  to  overthrow  in  fact  what  was  estabhshed 
in  theory;  and  would  seem,  at  first  view,  an  absurdity  too  gross 
to  be  insisted  on.  It  shall,  however,  receive  a  more  attentive 
consideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial 
department  to  say  what  the  law  is.  Those  who  apply  the  rule 
to  particular  cases,  must  of  necessity  expound  and  interpret 
that  rule.  If  two  laws  conflict  with  each  other,  the  courts  must 
decide  on  the  operation  of  each. 

So  if  a  law  be  in  opposition  to  the  constitution;  if  both  the 
law  and  the  constitution  apply  to  a  particular  case,  so  that  the 
court  must  either  decide  that  case  conformably  to  the  law,  dis- 
regarding the  constitution,  or  conformably  to  the  constitution, 
disregarding  the  law,  the  court  must  determine  which  of  these 
conflicting  rules  governs  the  case.  This  is  of  the  very  essence 
of  judicial  duty. 

If,  then,  the  courts  are  to  regard  the  constitution,  and  the 
constitution  is  superior  to  any  ordinary  act  of  the  legislature, 
the  constitution,  and  not  such  ordinary  act,  must  govern  the 
case  to  which  they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  constitu- 
tion is  to  be  considered,  in  court,  as  a  paramount  law,  are 
reduced  to  the  necessity  of  maintaining  that  courts  must  close 
their  eyes  on  the  constitution,  and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  ^vrit- 
ten  constitutions.  It  would  declare  that  an  act  which,  accord- 
ing to  the  principles  and  theory  of  our  government,  is  entirely 
void,  is  yet,  in  practice,  completely  obligatory.  It  would 
declare  that  if  the  legislature  shall  do  what  is  expressly  forbid- 
den, such  act,  notwithstanding  the  express  prohibition,  is  in 
reality  effectual.  It  would  be  giving  to  the  legislature  a  practi- 


2SO  NATIONAL  SOVEREIGNTY 

cal  and  real  omnipotence,  with  the  same  breath  which  professes 
to  restrict  their  powers  within  narrow  Umits.  It  is  prescribing 
limits,  and  declaring  that  those  limits  may  be  passed  at 
pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the 
greatest  improvement  on  political  institutions,  a  written  consti- 
tution, would  of  itself  be  sufficient,  in  America,  where  written 
constitutions  have  been  viewed  with  so  much  reverence,  for 
rejecting  the  construction.  But  the  peculiar  expressions  of  the 
constitution  of  the  United  States  furnish  additional  arguments 
in  favor  of  its  rejection. 

The  judicial  power  of  the  United  States  is  extended  to  all 
cases  arising  under  the  constitution. 

Could  it  be  the  intention  of  those  who  gave  this  power,  to 
say  that  in  using  it  the  constitution  should  not  be  looked  into? 
That  a  case  arising  under  the  constitution  should  be  decided 
without  examining  the  instrument  under  which  it  arises? 

This  is  too  extravagant  to  be  maintained. 

In  some  cases,  then,  the  constitution  must  be  looked  into  by 
the  judges.  And  if  they  can  open  it  at  all,  what  part  of  it  are 
they  forbidden  to  read  or  to  obey? 

There  are  many  other  parts  of  the  constitution  which  serve 
to  illustrate  this  subject. 

It  is  declared  that  "no  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State."  Suppose  a  duty  on  the  export  of 
cotton, of  tobacco, or  of  flour;  and  a  suit  instituted  to  recover  it. 
Ought  judgment  to  be  rendered  in  such  a  case?  ought  the  judges 
to  close  their  eyes  on  the  constitution,  and  only  see  the  law? 

The  constitution  declares  "  that  no  bill  of  attainder  or  ex  post 
facto  law  shall  be  passed." 

If,  however,  such  a  bill  should  be  passed,  and  a  person  should 
be  prosecuted  under  it,  must  the  court  condemn  to  death 
those  victims  whom  the  constitution  endeavors  to  preserve? 

"No  person,"  says  the  constitution,  "shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court." 

Here  the  language  of  the  constitution  is  addressed  especially 


POWER  OF  FEDERAL  JUDICIARY     251 

to  the  courts.  It  prescribes,  directly  for  them,  a  rule  of  evidence 
not  to  be  departed  from.  If  the  legislature  should  change  that 
rule,  and  declare  one  witness,  or  a  confession  out  of  court,  suffi- 
cient for  conviction,  must  the  constitutional  principle  yield  to 
the  legislative  act? 

From  these,  and  many  other  selections  which  might  be  made, 
it  is  apparent  that  the  framers  of  the  constitution  contem- 
plated that  instrument  as  a  rule  for  the  government  of  courts, 
as  well  as  of  the  legislature. 

Why  otherwise  does  it  direct  the  judges  to  take  an  oath  to 
support  it?  This  oath  certainly  applies  in  an  especial  manner 
to  their  conduct  in  their  official  character.  How  immoral  to 
impose  it  on  them,  if  they  were  to  be  used  as  the  instruments, 
and  the  knowing  instruments,  for  violating  what  they  swear  to 
support! 

The  oath  of  office,  too,  imposed  by  the  legislature,  is  com- 
pletely demonstrative  of  the  legislative  opinion  on  this  subject. 
It  is  in  these  words:  *'I  do  solemnly  swear  that  I  will  admin- 
ister justice  without  respect  to  persons,  and  do  equal  right  to 
the  poor  and  to  the  rich;  and  that  I  will  faithfully  and  impar- 
tially discharge  all  the  duties  incumbent  on  me  as  ,  accord- 
ing to  the  best  of  my  abilities  and  understanding,  agreeably  to 
the  constitution  and  laws  of  the  United  States." 

Why  does  a  judge  swear  to  discharge  his  duties  agreeably  to 
the  constitution  of  the  United  States,  if  that  constitution  forms 
no  rule  for  his  government —  if  it  is  closed  upon  him,  and  can- 
not be  inspected  by  him? 

If  such  be  the  real  state  of  things,  this  is  worse  than  solemn 
mockery.  To  prescribe,  or  to  take  this  oath,  becomes  equally 
a  crime. 

It  is  also  not  entirely  unworthy  of  observation,  that  in  de- 
claring what  shall  be  the  supreme  law  of  the  land,  the  constitu- 
tion itself  is  first  mentioned;  and  not  the  laws  of  the  United 
States  generally,  but  those  only  which  shall  be  made  in  pursu- 
ance of  the  constitution,  have  that  rank. 

Thus,  the  particular  phraseology  of  the  constitution  of  the 
United  States  confirms  and  strengthens  the  principle,  supposed 


252  NATIONAL  SOVEREIGNTY 

to  be  essential  to  all  written  constitutions,  that  a  law  repug- 
nant to  the  constitution  is  void;  and  that  courts,  as  well  as 
other  departments,  are  bound  by  that  instrument. 

78.  Jefferson  on  the  Usurpation  of  the  Federal  Judiciary} 

In  denying  the  right  they  usurp,  of  exclusively  explaining  the 
constitution,  I  go  further  than  you  do,  if  I  understand  rightly 
your  quotation,  from  The  Federalist,  of  an  opinion  that  "the 
judiciary  is  the  last  resort  in  relation  to  the  other  departments  of 
the  government,  but  not  in  relation  to  the  rights  of  the  parties 
to  the  compact  under  which  the  judiciary  is  derived."  If  this 
opinion  be  sound,  then  indeed  is  our  constitution  a  complete 
felo  de  se.  For  intending  to  establish  three  departments,  co- 
ordinate and  independent,  that  they  might  check  and  balance 
one  another,  it  has  given,  according  to  this  opinion,  to  one  of 
them  alone,  the  right  to  prescribe  rules  for  the  government  of 
the  others,  and  to  that  one  too,  which  is  unelected  by,  and  inde- 
pendent of  the  nation.  For  experience  has  already  shown  that 
the  impeachment  it  has  provided  is  not  even  a  scare-crow;  that 
such  opinions  as  the  one  you  combat,  sent  cautiously  out,  as  you 
observe  also,  by  detachment,  not  belonging  to  the  case  often, 
but  sought  for  out  of  it,  as  if  to  rally  the  public  opinion  before- 
hand to  their  views,  and  to  indicate  the  line  they  are  to  walk 
in,  have  been  so  quietly  passed  over  as  never  to  have  excited 
animadversion,  even  in  a  speech  of  any  one  of  the  body  en- 
trusted with  impeachment. 

The  constitution,  on  this  hypothesis,  is  a  mere  thing  of  wax 
in  the  hands  of  the  judiciary  which  they  may  twist  and  shape 
into  any  form  they  please.  It  should  be  remembered,  as  an 
axiom  of  eternal  truth  in  politics,  that  whatever  power  in  any 
government  is  independent,  is  absolute  also;  in  theory  only  at 
first,  while  the  spirit  of  the  people  is  up,  but  in  practice,  as  fast 
as  that  relaxes.  Independence  can  be  trusted  nowhere  but  with 
the  people  in  mass.  They  are  inherently  independent  of  all  but 
moral  law.  My  construction  of  the  constitution  is  very  differ- 

^  Jefferson  to  Judge  Roane,  September  6,  1819.  Writings  of  Thomas 
Jeferson  (Washington  ed.),  vn,  134-35. 


POWER  OF  FEDERAL  JUDICIARY     253 

ent  from  that  you  quote.  It  is  that  each  department  is  truly 
independent  of  the  others,  and  has  an  equal  right  to  decide  for 
itself  what  is  the  meaning  of  the  constitution  in  the  cases  sub- 
mitted to  its  action;  and  especially,  where  it  is  to  act  ultimately 
and  without  appeal.  I  will  explain  myself  by  examples,  which, 
having  occurred  while  I  was  in  office,  are  better  known  to  me, 
and  the  principles  which  governed  them. 


CHAPTER  XXVIII 

PENNSYLVANIA  AND  THE    FEDERAL   JUDICIARY 

The  prolonged  controversy  between  Pennsylvania  and  the  federal 
judiciary  dated  back  to  1779,  when  the  Committee  or  Court  of  Appeals 
of  the  old  Congress  reversed  the  judgment  of  the  Pennsylvania  Court  of 
Admiralty  in  the  case  of  the  sloop  Active.  The  resistance  of  Pennsylvania 
led  Gideon  Olmstead  and  others  who  claimed  the  award  to  bring  suit  in 
the  federal  district  court,  over  which  Judge  Peters  presided.  The  decision 
was  agam  in  favor  of  Olmstead,  but  again  the  legislature  of  Pennsylvania 
interposed  to  prevent  the  payment  of  the  prize  money.  The  Attorney- 
General  then  appHed  to  the  Supreme  Court,  in  behalf  of  Olmstead,  for 
a  writ  of  mandamus  commanding  Judge  Peters  to  enforce  his  judgment. 
Chief  Justice  Marshall  granted  the  writ  in  the  following  opinion.  The 
writ  was  issued,  but  the  federal  marshal  was  prevented  from  serving  it  by 
a  body  of  State  militia.  He  then  summoned  a  posse  comitalus  of  two  thou- 
sand men.  Bloodshed  seemed  imminent,  but  after  some  delay  the  Penn- 
sylvania authorities  gave  way  and  paid  over  the  sum  in  dispute.  Later, 
the  commanding  officer  of  the  State  militia  and  others  who  had  resisted 
the  United  States  marshal  were  indicted  and  sentenced  to  fine  and 
imprisonment.  President  Madison  pardoned  them,  however,  on  the 
ground  that  "  they  had  acted  under  a  mistaken  sense  of  duty."  The  para- 
mount authority  of  the  National  Government  was  thus  sustained  at  every 
point  in  the  controversy.  The  appended  resolutions  were  passed  by  the 
legislature  of  Pennsylvania  in  the  heat  of  the  controversy.  They  met  with 
no  approval  in  other  States.  On  the  contrary,  the  legislature  of  Virginia 
pointed  out  "that  a  tribunal  is  already  provided  by  the  Constitution  of 
the  United  States,  to  wit:  the  Supreme  Court,  more  eminently  qualified 
from  their  habits  and  duties,  from  the  mode  of  their  selection,  and  from 
the  tenure  of  their  ofiices,  to  decide  the  disputes  aforesaid  in  an  enlight- 
ened and  impartial  manner,  than  any  other  tribunal  which  could  be 
erected." 

79.  The  United  States  v.  Judge  Peters} 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the 
Court  as  follows : 

With  great  attention,  and  with  serious  concern,  the  court 

has  considered  the  return  made  by  the  judge  for  the  District 

of  Pennsylvania  to  the  mandamus  directing  him  to  execute  the 

sentence  pronounced  by  him  in  the  case  of  Gideon  Olmstead  and 

^  Supreme  Court  of  the  United  States,  1809,  5  Cranch,  135. 


PENNSYLVANIA  AND  THE  JUDICIARY    255. 

others  v.  Rittenhouse' s  Executrixes,  or  to  show  cause  for  not  so 
doing.  The  cause  shown  is  an  act  of  the  legislature  of  Penn- 
sylvania, passed  subsequent  to  the  rendition  of  his  sentence. 
This  act  authorizes  and  requires  the  governor  to  demand,  for 
the  use  of  the  state  of  Pennsylvania,  the  money  which  had 
been  decreed  to  Gideon  Ohnstead  and  others;  and  which  was 
in  the  hands  of  the  executrixes  of  David  Rittenhouse;  and,  in 
default  of  payment,  to  direct  the  Attorney  General  to  institute 
a  suit  for  the  recovery  thereof.  This  act  further  authorizes  and 
requires  the  governor  to  use  any  further  means  he  may  think 
necessary  for  the  protection  of  what  it  denominates  "the  just 
rights  of  the  state,"  and  also  to  protect  the  persons  and  proper- 
ties of  the  said  executrixes  of  David  Rittenhouse,  deceased, 
against  any  process  whatever,  issued  out  of  any  federal  court  in 
consequence  of  their  obedience  to  the  requisition  of  the  said  act. 
If  the  legislatures  of  the  several  states  may,  at  will,  annul 
the  judgment  of  the  courts  of  the  United  States,  and  destroy 
the  rights  acquired  under  those  judgments,  the  constitution 
itself  becomes  a  solemn  mockery,  and  the  nation  is  deprived  of 
the  means  of  enforcing  its  laws  by  the  instrumentaHty  of  its 
own  tribunals.  So  fatal  a  result  must  be  deprecated  by  all; 
and  the  people  of  Pennsylvania,  not  less  than  the  citizens  of 
every  other  state,  must  feel  a  deep  interest  in  resisting  princi- 
ples so  destructive  of  the  Union  and  in  averting  consequences 
so  fatal  to  themselves. 

The  act  in  question  does  not,  in  terms,  assert  the  universal 
right  of  the  state  to  interpose  in  every  case  whatever;  but 
assigns,  as  a  motive  for  its  interposition  in  this  particular  case, 
that  the  sentence,  the  execution  of  which  it  prohibits,  was  rQp- 
dered  in  a  cause  over  which  the  federal  courts  have  no  jurisdic- 
tion. 

If  the  ultimate  right  to  determine  the  jurisdiction  of  the 
courts  of  the  Union  is  placed  by  the  constiturion  in  the  several 
state  legislatures,  then  this  act  concludes  the  subject;  but  if 
that  power  necessarily  resides  in  the  supreme  judicial  tribunal 
of  the  narion,  then  the  jurisdicrion  of  the  District  Court  of 
Pennsylvania,  over  the  case  in  which  that  jurisdicrion  was 


256  NATIONAL  SOVEREIGNTY 

exercised,  ought  to  be  most  deliberately  examined;  and  the 
act  of  Pennsylvania,  with  whatever  respect  it  may  be  consid- 
ered, cannot  be  permitted  to  prejudice  the  question. 

In  the  early  part  of  the  war  between  the  United  States  and 
Great  Britain,  Gideon  Ohnstead  and  others,  citizens  of  Con- 
necticut, who  say  they  had  been  carried  to  Jamaica  as  prison- 
ers, were  employed  as  part  of  the  crew  of  the  sloop  Active, 
bound  from  Jamaica  to  New  York,  and  laden  with  a  cargo  for 
the  use  of  the  British  army  in  that  place.  On  the  voyage  they 
seized  the  vessel,  confined  the  captain,  and  sailed  for  Egg  Har- 
bor. In  sight  of  that  place,  tht  Active  was  captured  by  the 
Convention,  an  armed  ship  belonging  to  the  state  of  Pennsyl- 
vania, brought  into  port,  libeled  and  condemned  as  prize  to  the 
captors.  From  this  sentence  Gideon  Olmstead  and  others,  who 
claimed  the  vessel  and  cargo,  appealed  to  the  Court  of  Appeals 
established  by  Congress,  by  which  tribunal  the  sentence  of 
condemnation  was  reversed,  the  Active  and  her  cargo  con- 
demned as  prize  to  the  claimants,  and  process  was  directed  to 
issue  out  of  the  Court  of  Admiralty,  commanding  the  marshal 
of  that  court  to  sell  the  said  vessel  and  cargo,  and  to  pay  the 
net  proceeds  to  the  claimants. 

The  mandate  of  the  appellate  court  was  produced  in  the 
inferior  court,  the  judge  of  which  admitted  the  general  juris- 
diction of  the  court  established  by  Congress,  as  an  appellate 
court,  but  denied  its  power  to  control  the  verdict  of  a  jury 
which  had  been  rendered  in  favor  of  the  captors,  the  officers 
and  crew  of  the  Convention;  and  therefore  refused  obedience 
to  the  mandate;  but  directed  the  marshal  to  make  the  sale, 
and,  after  deducting  charges,  to  bring  the  residue  of  the  money 
into  court,  subject  to  its  future  order. 

The  claimants  then  applied  to  the  judges  of  appeals  for  an 
injunction  to  prohibit  the  marshal  from  paying  the  money, 
arising  from  the  sales,  into  the  Court  of  Admiralty;  which  was 
awarded,  and  served  upon  him:  in  contempt  of  which,  on  the 
4th  of  January,  1778,  he  paid  the  money  to  the  judge,  who 
acknowledged  the  receipt  thereof  at  the  foot  of  the  marshal's 
return. 


PENNSYLVANIA  AND  THE  JUDICIARY    257 

On  the  ist  of  May,  1779,  George  Ross,  the  judge  of  the  Court 
of  Admiralty,  delivered  to  David  Rittenhouse,  who  was  then 
treasurer  of  the  state  of  Pennsylvania,  the  sum  of  11,496/.  95. 
gd.,  in  loan-ofiice  certificates;  which  was  the  proportion  of  the 
prize  money  to  which  that  state  would  have  been  entitled,  had 
the  sentence  of  the  Court  of  Admiralty  remained  in  force.  On 
the  same  day,  David  Rittenhouse  executed  a  bond  of  indem- 
nity to  George  Ross,  in  which,  after  reciting  that  the  money 
was  paid  to  him  for  the  use  of  the  state  of  Pennsylvania,  he 
binds  himself  to  repay  the  same,  should  the  said  George  Ross 
be  thereafter  compelled,  by  due  course  of  law,  to  pay  that  sum 
according  to  the  decree  of  the  Court  of  Appeals. 

These  loan-office  certificates  were  in  the  name  of  Matthew 
Clarkson,  who  was  marshal  of  the  Court  of  Admiralty,  and  were 
dated  the  6th  of  November,  1778.  Indents  were  issued  on  them 
to  David  Rittenhouse,  and  the  whole  principal  and  interest  were 
afterwards  funded  by  him,  in  his  own  name,  under  the  act  of 
Congress  making  provision  for  the  debt  of  the  United  States. 

Among  the  papers  of  David  Rittenhouse  was  a  memorandum, 
made  by  himself  at  the  foot  of  a  list  of  the  certificates  men- 
tioned above,  in  these  words : ''  Note.  The  above  certificates  will 
be  the  property  of  the  state  of  Pennsylvania,  when  the  state 
releases  me  from  the  bond  I  gave  in  1778,  to  indemnify  George 
Ross,  Esq.,  judge  of  the  admiralty,  for  paying  the  50  original 
certificates  into  the  treasury,  as  the  state's  share  of  the  prize." 

The  state  did  not  release  David  Rittenhouse  from  the  bond 
mentioned  in  this  memorandum.  These  certificates  remained 
in  the  private  possession  of  David  Rittenhouse,  who  drew  the 
interest  on  them  during  his  life,  and  after  his  death  they  re- 
mained in  possession  of  his  representatives;  against  whom  the 
libel  in  this  case  was  filed,  for  the  purpose  of  carrying  into 
execution  the  decree  of  the  Court  of  Appeals. 

While  this  suit  was  depending,  the  state  of  Pennsylvania 
forbore  to  assert  its  title,  and,  in  January,  1803,  the  court 
decreed  in  favor  of  the  libellants;  soon  after  which,  the  legis- 
lature passed  the  act  which  has  been  stated. 

It  is  contended  that  the  federal  courts  were  deprived  of 


258  NATIONAL  SOVEREIGNTY 

jurisdiction,  in  this  cause,  by  that  amendment  of  the  constitu- 
tion which  exempts  states  from  being  sued  in  those  courts  by 
individuals.  This  amendment  declares,  "that  the  judicial 
power  of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit,  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of  another  state,  or  by 
citizens  or  subjects  of  any  foreign  state." 

The  right  of  a  state  to  assert,  as  plaintiff,  any  interest  it 
may  have  in  a  subject,  which  forms  the  matter  of  controversy 
between  individuals,  in  one  of  the  courts  of  the  United  States, 
is  not  affected  by  this  amendment;  nor  can  it  be  so  construed 
as  to  oust  the  court  of  its  jurisdiction,  should  such  claim  be 
suggested.  The  amendment  simply  provides,  that  no  suit  shall 
be  commenced  or  prosecuted  against  a  state.  The  state  cannot 
be  made  a  defendant  to  a  suit  brought  by  an  individual;  but  it 
remains  the  duty  of  the  courts  of  the  United  States  to  decide 
all  cases  brought  before  them  by  citizens  of  one  state  against 
citizens  of  a  different  state,  where  a  state  is  not  necessarily  a 
defendant.  In  this  case,  the  suit  was  not  instituted  against 
the  state  or  its  treasurer,  but  against  the  executrixes  of  David 
Rittenhouse,  for  the  proceeds  of  a  vessel  condemned  in  the 
court  of  admiralty,  which  were  admitted  to  be  in  their  posses- 
sion. If  these  proceeds  had  been  the  actual  property  of  Penn- 
sylvania, however  wrongfully  acquired,  the  disclosure  of  that 
fact  would  have  presented  a  case  on  which  it  is  unnecessary  to 
give  an  opinion;  but  it  certainly  can  never  be  alleged  that  a 
mere  suggestion  of  title  in  a  state  to  property,  in  possession  of 
an  individual,  must  arrest  the  proceedings  of  the  court,  and 
prevent  their  looking  into  the  suggestion,  and  examining  the 
vaUdity  of  the  title. 

If  the  suggestion  in  this  case  be  examined,  it  is  deemed 
perfectly  clear  that  no  title  whatever  to  the  certificates  in 
question  was  vested  in  the  state  of  Pennsylvania. 

By  the  highest  judicial  authority  of  the  nation  it  has  been 
long  since  decided,  that  the  Court  of  Appeals  erected  by  Con- 
gress had  full  authority  to  revise  and  correct  the  sentence  of 
the  courts  of  admiralty  of  the  several  states,  in  prize  causes. 


\ 


PENNSYLVANIA  AND  THE  JUDICIARY    259 

That  question,  therefore,  is  at  rest.  Consequently,  the  decision 
of  the  Court  of  Appeals  in  this  case  annulled  the  sentence 
of  the  Court  of  Admiralty,  and  extinguished  the  interest  of  the 
state  of  Pennsylvania  in  the  Active  and  her  cargo,  which  was 
acquired  by  that  sentence.  The  full  right  to  that  property  was 
immediately  vested  in  the  claimants,  who  might  rightfully 
pursue  it,  into  whosesoever  hands  it  might  come.  These 
certificates,  in  the  hands,  first,  of  Matthew  Clarkson,  the 
marshal,  and  afterwards  of  George  Ross,  the  judge  of  the  Court 
of  Admiralty,  were  the  absolute  property  of  the  claimants. 
Nor  did  they  change  their  character  on  coming  into  the  pos- 
session of  David  Rittenhouse. 

Although  Mr.  Rittenhouse  was  treasurer  of  the  state  of 
Pennsylvania,  and  the  bond  of  indemnity  which  he  executed 
states  the  money  to  have  been  paid  to  him  for  the  use  of  the 
state  of  Pennsylvania,  it  is  apparent  that  he  held  them  in  his 
own  right,  until  he  should  be  completely  indemnified  by  the 
state.  The  evidence  to  this  point  is  conclusive.  The  original 
certificates  do  not  appear  to  have  been  deposited  in  the  state 
treasury,  to  have  been  designated  in  any  manner  as  the  pro- 
perty of  the  state,  or  to  have  been  delivered  over  to  the  suc- 
cessor of  David  Rittenhouse.  They  remained  in  his  possession. 
The  indents,  issued  upon  them  for  interest,  were  drawn  by 
David  Rittenhouse,  and  preserved  with  the  original  certificates. 
When  funded  as  part  of  the  debt  of  the  United  States,  they 
were  funded  by  David  Rittenhouse,  and  the  interest  was  drawn 
by  him.  The  note  made  by  himself  at  the  foot  of  the  list,  which 
he  preserved,  as  explanatory  of  the  whole  transaction,  demon- 
strates that  he  held  the  certificates  as  security  against  the  bond 
he  had  executed  to  George  Ross ;  and  that  bond  was  obligatory, 
not  on  the  state  of  Pennsylvania,  but  on  David  Rittenhouse, 
in  his  private  capacity. 

These  circumstances  demonstrate,  beyond  the  possibility  of 
doubt,  that  the  property  which  represented  the  Active  and  her 
cargo,  was  in  possession,  not  of  the  state  of  Pennsylvania,  but 
of  David  Rittenhouse  as  an  individual ;  after  whose  death  it 
passed,  like  other  property,  to  his  representatives. 


26o  NATIONAL  SOVEREIGNTY 

Since,  then,  the  state  of  Pennsylvania  had  neither  possession 
of,  nor  right  to,  the  property  on  which  the  sentence  of  the  Dis- 
trict Court  was  pronounced,  and  since  the  suit  was  neither 
commenced  nor  prosecuted  against  that  state,  there  remains 
no  pretext  for  the  allegation  that  the  case  is  within  that  amend- 
ment of  the  constitution  which  has  been  cited;  and,  conse- 
quently,the  state  of  Pennsylvania  can  possess  no  constitutional 
right  to  resist  the  legal  process  which  may  be  directed  in  this 
cause. 

It  will  be  readily  conceived  that  the  order  which  this  court 
is  enjoined  to  make  by  the  high  obligations  of  duty  and  of  law, 
is  not  made  without  extreme  regret  at  the  necessity  which  has 
induced  the  appHcation.  But  it  is  a  solemn  duty,  and  therefore 
must  be  performed.  A  peremptory  mandamus  must  be  awarded. 

80.  Resolutions  of  the  Legislature  of  Pennsylvania} 

.  .  .  And  whereas  the  causes  and  reasons  which  have  pro- 
duced this  conflict  between  the  General  and  State  govern- 
ments should  be  made  known,  not  only  that  the  State  may  be 
justified  to  her  sister  States,  who  are  equally  interested  in  the 
preservation  of  the  State  rights;  but  to  evince  to  the  Govern- 
ment of  the  United  States  that  the  Legislature,  in  resisting 
encroachments  on  their  rights,  are  not  acting  in  a  spirit  of 
hostility  to  the  legitimate  powers  of  the  United  States'  courts; 
but  are  actuated  by  a  disposition  to  compromise,  and  to  guard 
against  future  collisions  of  power,  by  an  amendment  to  the 
Constitution :  and  that,  whilst  they  are  contending  for  the  rights 
of  the  State,  that  it  will  be  attributed  to  a  desire  of  preserv- 
ing the  Federal  Government  itself,  the  best  features  of  which 
must  depend  upon  keeping  up  a  just  balance  between  the 
General  and  State  governments,  as  guaranteed  by  the  Con- 
stitution. .  .  . 

Therefore, 

Resolved  by  the  Senate  and  House  of  Representatives  of  the 
Commonwealth  of  Pennsylvania,  &c.  That,  as  a  member  of  the 

1  April  3, 1809.  Annals  of  Congress,  n  Cong.,  2  Sess.,  Appendix,  2253- 
69  passim. 


PENNSYLVANIA  AND  THE  JUDICIARY    261 

Federal  Union,  the  Legislature  of  Pennsylvania  acknowledges 
the  supremacy,  and  will  cheerfully  submit  to  the  authority 
of  the  General  Government,  as  far  as  that  authority  is  delegated 
by  the  Constitution  of  the  United  States.  But,  whilst  they 
yield  to  this  authority,  when  exercised  within  Constitutional 
limits,  they  trust  they  will  not  be  considered  as  acting  hostile 
to  the  General  Government,  when,  as  guardians  of  the  State 
rights,  they  can  not  permit  an  infringement  of  those  rights, 
by  an  unconstitutional  exercise  of  power  in  the  United  States' 
courts. 

Resolved,  That  in  a  Government  hke  that  of  the  United 
States,  where  there  are  powers  granted  to  the  General  Govern- 
ment, and  rights  reserved  to  the  States,  it  is  impossible,  from 
the  imperfections  of  language,  so  to  define  the  limits  of  each, 
that  difficulties  should  not  sometimes  arise  from  a  collision 
of  powers :  and  it  is  to  be  lamented,  that  no  provision  is  made  in 
the  Constitution  for  determining  disputes  between  the  General 
and  State  governments  by  an  impartial  tribunal,  when  such 
cases  occur. 

Resolved,  That  from  the  construction  the  United  States' 
courts  give  to  their  powers,  the  harmony  of  the  States,  if  they 
resist  encroachments  on  their  rights,  will  frequently  be  inter- 
rupted ;  and  if  to  prevent  this  evil,  they  should,  on  all  occasions 
yield  to  stretches  of  power,  the  reserved  rights  of  the  States 
will  depend  on  the  arbitrary  power  of  the  courts. 

Resolved,  That,  should  the  independence  of  the  States,  as 
secured  by  the  Constitution,  be  destroyed,  the  liberties  of  the 
people  in  so  extensive  a  country  cannot  long  survive.  To  suffer 
the  United  States'  courts  to  decide  on  State  rights  will,  from 
a  bias  in  favor  of  power,  necessarily  destroy  the  Federal  part 
of  our  Government:  And  whenever  the  government  of  the 
United  States  becomes  consolidated,  we  may  learn  from  the 
history  of  nations  what  will  be  the  event. 

To  prevent  the  balance  between  the  General  and  State 
governments  from  being  destroyed,  and  the  harmony  of  the 
States  from  being  internipted. 

Resolved,  That  our  Senators  in  Congress  be  instructed,  and 


262  NATIONAL  SOVEREIGNTY 

our  Representatives  requested,  to  use  their  influence  to  procure 
an  amendment  to  the  Constitution  of  the  United  States,  that 
an  impartial  tribunal  may  be  established  to  determine  disputes 
between  the  General  and  State  governments;  and,  that  they 
be  further  instructed  to  use  their  endeavors,  that  in  the  mean- 
while, such  arrangements  may  be  made,  between  the  Govern- 
ments of  the  Union  and  of  this  State,  as  will  put  an  end  to 
existing  difficulties. 

Resolved,  That  the  Governor  be  requested  to  transmit  a  copy 
of  these  resolutions,  to  the  Executive  of  the  United  States,  to 
be  laid  before  Congress,  at  their  next  session.  And  that  he  be 
authorized  and  directed  to  correspond  with  the  President  on 
the  subject  in  controversy,  and  to  agree  to  such  arrangements 
as  may  be  in  the  power  of  the  Executive  to  make,  or  that  Con- 
gress may  make,  either  by  the  appointment  of  commissioners 
or  otherwise,  for  settling  the  difficulties  between  the  two 
Governments. 

And,  That  the  Governor  be  also  requested  to  transmit  a 
copy  to  the  Executives  of  the  several  States  in  the  Union  with 
a  request,  that  they  may  be  laid  before  their  respective  Legis- 
latures. .  .  . 


CHAPTER  XXIX 

NULLIFICATION    IN   NEW   ENGLAND 

The  hostility  of  New  England  to  the  embargo  policy  of  Jefferson  was 
due  to  both  economical  and  poHtical  considerations.  The  embargo  was 
urged  as  the  alternative  to  war;  but  even  so  the  people  of  New  England 
were  put  to  a  severe  test.  A  temporary  interdiction  of  trade  might  have 
been  borne  with  a  degree  of  equanimity;  but  a  long-continued  embargo 
was  considered  a  blow  aimed  at  Federalist  commerce  and  trade.  Evasion 
of  the  laws  was  carried  to  such  a  point  that  Jefferson  was  obliged  to  re- 
commend measures  of  enforcement  which  he  admitted  were  odious  and 
dangerous.  The  legislatures  of  Massachusetts,  Rhode  Island,  and  Con- 
necticut pronounced  these  acts  unjust,  oppressive,  and  unconstitutional. 
Connecticut  went  still  further,  and  refused  to  comply  with  the  demands 
of  the  National  Government  for  the  use  of  State  militia  to  enforce  the 
embargo. 

A  similar  attitude  was  assumed  by  Massachusetts  during  the  War  of 
i8i2,which  the  Federalists  denounced  as  a  "party  and  not  a  national 
war."  When  General  Dearborn  made  requisition  for  militia  for  service 
in  defense  of  the  coast,  Governor  Strong  refused  to  obey  the  call.  His 
reasons  for  not  complying  are  stated  in  his  correspondence,  and  were 
indorsed  by  the  judges  of  the  supreme  court  of  the  State.  But  in  the  case 
of  Martin  v.  Mott,  fifteen  years  later,  the  Supreme  Court  of  the  United 
States  took  an  adverse  view  of  the  position  assumed  by  the  New  England 
authorities. 

8i.  Secretary  of  War  to  the  Governor  of  Connecticut.^ 

Sir,  —  The  pressure  of  the  embargo  although  sensibly  felt  by 
every  description  of  our  fellow  citizens,  has  yet  been  cheerfully 
borne  by  most  of  them,  under  a  conviction  that  it  was  a  tem- 
porary evil,  and  a  necessary  one  to  save  us  from  greater  and 
more  permanent  evils,  the  loss  of  property  and  surrender  of 
rights:  but  it  would  have  been  more  cheerfully  borne  but  for 
the  knowledge  that,  while  honest  men  were  religiously  observ- 
ing it,  the  unprincipled  along  our  sea-coasts  and  frontiers,  were 
fraudulently  evading  it :  and  that  in  some  parts  they  had  even 
dared  to  break  through  it  openly  by  an  armed  force  too  power- 
ful to  be  opposed  by  the  collector  and  his  assistants. 

^  American  Register  (1809),  177-78.  January  18,  1S09. 


264  NATIONAL  SOVEREIGNTY 

To  put  an  end  to  this  scandalous  insubordination  to  the  laws, 
the  legislature  has  authorized  the  president  of  the  United 
States  to  empower  proper  persons  to  employ  militia  for  pre- 
venting or  suppressing  armed  or  riotous  assemblages  of  persons 
resisting  the  custom-house  ofl&cers  in  the  exercise  of  their 
duties,  or  opposing  or  violatmg  the  embargo  laws.  He  sin- 
cerely hopes  that  during  the  short  time  these  restrictions  are 
expected  to  continue,  no  other  instances  will  take  place  of  a 
crime  of  so  deep  a  die.  But  it  is  made  his  duty,  to  take  the 
measures  necessary  to  meet  it.  He  has  directed  me,  therefore, 
to  request  you,  as  commanding  officer  of  the  mihtia  of  your 
state,  to  appoint  some  ofl&cer  of  the  mihtia,  of  known  respect 
for  the  laws,  in  or  near  to  each  port  of  entry  within  your  state, 
with  orders,  when  appUed  to  by  the  collector  of  the  district  to 
assemble  immediately  a  sufficient  force  of  his  militia,  and  to 
employ  them  efficaciously  to  maintain  the  authority  of  the 
laws  respecting  the  embargo;  and  that  you  notify  to  each 
collector  the  ofl&cer  to  whom  by  your  appointment  he  is  to 
apply  for  aid  when  necessary.  The  president  has  referred  this 
appointment  to  your  excellency,  because  your  knowledge  of 
characters,  or  means  of  obtaining  it,  will  enable  you  to  select 
one  who  can  be  most  confided  in  to  exercise  so  serious  a  power, 
with  all  the  discretion,  the  forbearance,  the  kindness,  even, 
which  the  enforcement  of  the  law  will  possibly  admit;  ever 
bearing  in  mind  that  the  life  of  a  citizen  is  never  to  be  endan- 
gered but  as  the  last  melancholy  effort  for  the  maintenance  of 
order  and  obedience  to  the  laws. 

Your  excellency  will  please  to  instruct  the  ofl&cers  so  ap- 
pointed, to  have  correct  muster  and  pay  rolls  made  out  and 
transmitted  to  this  department,  of  such  militia  as  they  may 
find  it  necessary,  in  the  execution  of  their  duties  to  call  into 
actual  service.  .  .  . 

82.  Governor  of  Connecticut  to  the  Secretary  of  War.^ 

Sir,  —  I  have  received  your  letter  of  the  i8th  January,  con- 
veying to  me  a  request  of  the  president  of  the  United  States, 
^  American  Register  (1809),  178-79.  February  4,  1809. 


NULLIFICATION  IN  NEW  ENGLAND     265 

that  as  commander  in  chief  of  the  militia  of  this  state,  I  would 
appoint  a  select  number  of  officers  of  our  militia,  to  whom 
the  collectors  of  the  customs  may  apply  for  military  aid  in 
certain  cases,  which  may  hy  them,  be  thought  necessary  for 
compelling  obedience  to  the  laws  of  Congress  enforcing  the  em- 
bargo. ... 

I  have  reflected  that  neither  the  constitution,  nor  statute  of 
this  state,  have  given  to  the  commander  in  chief  of  its  militia, 
any  authority  to  make  such  appointment  of  officers  as  has  been 
requested ;  nor  does  my  information  suggest  to  me,  any  author- 
ity given  to  the  president  of  the  United  States,  derived  either 
from  the  constitution  or  laws  of  the  United  States,  to  call  upon 
the  executive  of  an  individual  state  to  take  an  agency  in 
appointments,  such  as  are  contemplated  by  the  request  men- 
tioned. 

Conceiving  also  as  I  do,  and  believing  it  to  be  the  opinion  of 
the  great  mass  of  the  citizens  of  this  state,  that  the  late  law  of 
Congress  for  the  more  rigorous  enforcement  of  the  embargo, 
is  unconstitutional  in  many  of  its  provisions,  interfering  with 
the  state  sovereignties,  and  subversive  of  the  guaranteed 
rights,  privileges  and  immunities  of  the  citizens  of  the  United 
States;  I  have  from  these  considerations,  deemed  it  peculiarly 
and  highly  improper  for  a  state  executive  to  contribute  his 
volunteer  aid  in  support  of  laws  bearing  such  an  aspect. 

And  when  I  reflect  upon  the  extent  of  measures  which  must 
probably  be  resorted  to  for  the  enforcement  of  this  law;  a  law 
which  from  the  means  contemplated  for  its  support  and  execu- 
tion, it  would  seem  is  to  require  all  the  military  and  naval  force 
of  the  union,  I  cannot  suppress  my  deep  anxiety  for  the  events 
it  may  produce. 

I  might  also  add,  that  I  cannot  be  induced  to  risk  my 
responsibility  to  the  public  by  contributing  towards  placing  a 
"serious  power"  in  the  hands,  and  at  the  disposal  of  men  in 
whom  I  should  not  be  able,  in  all  instances,  to  repose  the  fullest 
confidence;  more  especially,  when  their  individual  acts  and 
measures,  may  not  always  be  under  the  regulation  of  the  best 
motives,  and  when  their  proceedings  in  execution  of  this  law, 


266  NATIONAL  SOVEREIGNTY 

will  naturally  tend  to  put  at  extreme  hazard,  the  peace,  lives, 
property  and  dearest  rights  of  our  fellow-citizens. 

Under  this  view  therefore  of  the  subject,  and  with  these 
considerations  before  me,  my  mind  has  been  led  to  a  serious 
and  decided  determination  to  decline  a  com.pliance  with  your 
request,  and  to  have  no  agency  in  the  appointments  which  the 
president  has  been  pleased  to  refer  to  me. 

While  I  take  the  hberty  of  thus  declining  this  agency,  you 
will  be  pleased  to  recollect,  that  on  all  former  occasions,  when 
constitutional  applications  have  been  made  to  this  state,  for  the 
execution  of  the  constitutional  laws  and  requisitions  of  the 
union,  the  promptitude  and  readiness  of  their  compliance, 
have  merited  and  received  the  approbation,  if  not  the  applause, 
of  the  general  administration  of  the  United  States.  .  .  . 

83.  Resolutions  of  the  General  Assembly  of  Connecticut} 

.  .  .  After  solemn  deliberation  and  advisement  thereon,  the 
general  assembly  are  decided  in  the  opinion,  and  do  resolve, 
that  the  acts  aforesaid  are  a  permanent  system  of  measures, 
abandoning  undeniable  rights;  interdicting  the  exercise  of 
constitutional  privileges,  and  unprecedented  in  the  annals  of 
nations;  and  do  contain  provisions  for  exercising  arbitrary 
powers,  grievous  to  the  good  people  of  this  state,  dangerous 
to  their  common  liberties,  incompatible  with  the  constitution 
of  the  United  States,  and  encroaching  upon  the  immunities  of 
this  state. 

Resolved,  That  to  preserve  the  union,  and  support  the  consti- 
tution of  the  United  States,  it  becomes  the  duty  of  the  legisla- 
ture of  the  states,  in  such  a  crisis  of  affairs,  vigilantly  to  watch 
over,  and  vigorously  to  maintain,  the  powers  not  delegated  to 
the  United  States,  but  reserved  to  the  states  respectively,  or 
to  the  people;  and  that  a  due  regard  to  this  duty,  will  not  per- 
mit this  assembly  to  assist,  or  concur  in  giving  effect  to  the 
aforesaid  unconstitutional  acts. 

Resolved,  That  this  assembly  highly  approve  of  the  conduct 
of  his  excellency  the  governor,  in  declining  to  designate  per- 
^  American  Register  (1809),  180-81.  March  i,  1809. 


NULLIFICATION  IN  NEW  ENGLAND  ,  267 

sons  to  carry  into  effect,  by  the  aid  of  military  power  the  act  of 
the  United  States,  enforcing  the  embargo,  and  that  his  letter, 
addressed  to  the  secretary  for  the  department  of  war,  contain- 
ing his  refusal  to  make  such  designation,  be  recorded  in  the 
public  records  of  this  state,  as  an  example  to  persons,  who  may 
hold  places  of  distinguished  trust,  in  this  free  and  independent 
republic. 

Resolved,  That  the  persons  holding  executive  offices  under 
this  state,  are  restrained  by  the  duties  which  they  owe  this 
state,  from  affording  any  official  aid  or  co-operation  in  the 
execution  of  the  acts  aforesaid;  and  that  his  excellency  the 
governor  be  requested,  as  commander  in  chief  of  the  military 
force  of  this  state,  to  cause  these  resolutions  to  be  published  in 
general  orders :  And  that  the  secretary  of  this  state  be,  and  he  is 
hereby  directed  to  transmit  copies  of  the  same  to  the  several 
sheriffs  and  town  clerks. 

Resolved,  That  his  excellency  the  governor  be  requested  to 
communicate  the  foregoing  resolutions  to  the  president  of  the 
United  States,  with  an  assurance  that  this  assembly  regret, 
that  they  are  thus  obliged  under  a  sense  of  paramount  public 
duty,  to  assert  the  unquestionable  rights  of  this  state,  to 
abstain  from  any  agency  in  the  execution  of  measures,  which 
are  unconstitutional  and  despotic. 

Resolved,  That  this  assembly  accord  in  sentiment,  with  the 
senate  and  house  of  representatives,  of  the  commonwealth  of 
Massachusetts,  that  it  is  expedient  to  effect  certain  alterations 
in  the  constitution  of  the  United  States;  and  will  zealously 
co-operate  with  that  commonwealth  and  any  other  of  the 
states,  in  all  legal  and  constitutional  measures  for  procuring 
such  amendments  to  the  constitution  of  the  United  States,  as 
shall  be  judged  necessary  to  obtain  more  effectual  protection 
and  defence  for  commerce;  and  to  give  to  the  commercial  states 
their  fair  and  just  consideration  in  the  union,  and  for  affording 
permanent  security,  as  well  as  present  relief,  from  the  oppres- 
sive measures  under  which  they  now  suffer.  .  .  . 


268  NATIONAL  SOVEREIGNTY 

84.  Governor  of  Massachusetts  to  the  Secretary  of  War} 

August  5,  1812. 

...  As  an  opinion  generally  prevailed,  that  the  Governor 
had  no  authority  to  call  the  militia  into  actual  service,  unless 
one  of  the  exigencies  contemplated  by  the  Constitution  exists, 
I  thought  it  expedient  to  call  the  council  together,  and,  having 
laid  before  them  your  letter,  and  those  I  have  received  from 
General  Dearborn,  I  requested  their  advice  on  the  subject 
of  them. 

The  Council  advised  "that  they  were  unable  from  a  view  of 
the  Constitution  of  the  United  States,  and  the  letters  aforesaid, 
to  perceive  that  any  exigency  exists  which  can  render  it  advis- 
able to  comply  with  said  requisition.  But,  as  upon  important 
questions  of  law,  and  upon  solemn  occasions,  the  Governor 
and  Council  have  authority  to  require  the  opinion  of  the  Jus- 
tices of  the  Supreme  Judicial  Court,  it  is  advisable  to  request  the 
opinion  of  the  Supreme  Court  upon  the  following  questions,  viz. : 

"  ist.  Whether  the  commanders  in  chief  of  the  militia  of  the 
several  states  have  a  right  to  determine,  whether  any  of  the 
exigencies  contemplated  by  the  Constitution  of  the  United 
States  exist;  so  as  to  require  them  to  place  the  militia,  or  any 
part  of  it,  in  the  service  of  the  United  States,  at  the  request  of 
the  President,  to  be  commanded  by  him  pursuant  to  acts  of 
Congress?" 

"  2nd.  Whether,  when  either  of  the  exigencies  exist,  author- 
izing the  employing  the  militia  in  the  service  of  the  United 
States,  the  militia  thus  employed,  can  be  lawfully  commanded 
by  any  officer,  but  of  the  militia,  except  by  the  President  of  the 
United  States?" 

I  enclose  a  copy  of  the  answer  given  by  the  judges  to  these 
questions.  ...  I  am  fully  disposed  to  afford,  all  the  aid  to  the 
measures  of  the  national  government  which  the  Constitution 
requires  of  me,  but  I  presume  it  will  not  be  expected,  or 
desired,  that  I  shall  fail  in  the  duty  which  I  owe  to  the  people 
of  this  state,  who  have  confided  their  interests  to  my  care. 

*  Senate  Documents,  13  Cong.,  3  Sess.,  Report  oj  the  Committee  on  Mil- 
itary A£airs,  February  28,  181 5,  34-48,  passim. 


NULLIFICATION  IN  NEW  ENGLAND      269 

85.  Opinionofthe  Judges  of  the  Supreme  Court  of  Massachusetts} 

On  the  construction  of  the  Federal  and  State  constitutions 
must  depend  the  answers  to  the  several  questions  proposed. 
As  the  militia  of  the  several  states  may  be  employed  in  the 
service  of  the  United  States,  for  the  three  specific  purposes  of 
executing  the  laws  of  the  Union,  of  suppressing  insurrections, 
and  of  repelling  invasions,  the  opinion  of  the  judges  is  requested, 
whether  the  Commanders-in-Chief  of  the  militia  of  the  several 
states  have  a  right  to  determine  whether  any  of  the  exigencies 
aforesaid  exist  so  as  to  require  them  to  place  the  militia,  or 
any  part  of  it,  in  the  service  of  the  United  States,  at  the  request 
of  the  President,  to  be  commanded  by  him  pursuant  to  acts 
of  Congress. 

It  is  the  opinion  of  the  undersigned,  that  this  right  is  vested 
in  the  Commanders-in-Chief  of  the  militia  of  the  several  states. 

The  Federal  Constitution  provides,  that  whenever  either  of 
these  exigencies  exist,  the  militia  may  be  employed,  pursuant 
to  some  act  of  Congress,  in  the  service  of  the  United  States; 
but  no  power  is  given,  either  to  the  President  or  to  Congress, 
to  determine  that  either  of  the  said  exigencies  do  in  fact  exist. 
As  this  power  is  not  delegated  to  the  United  States  by  the 
Federal  Constitution,  nor  prohibited  by  it  to  the  states,  it  is 
reserved  to  the  states,  respectively;  and  from  the  nature  of  the 
power,  it  must  be  exercised  by  those  with  whom  the  states  have 
respectively  entrusted  the  chief  command  of  the  militia. 

It  is  the  duty  of  these  commanders  to  execute  this  important 
trust,  agreeably  to  their  several  states,  respectively,  without 
respect  to  the  laws  or  officers  of  the  United  States,  in  all  cases, 
except  those  specially  provided  in  the  Federal  Constitution. 
They  must,  therefore,  determine  whether  either  of  the  special 
cases  exist,  obliging  them  to  relinquish  the  execution  of  this 
trust,  and  to  render  themselves  and  the  militia  subject  to  the 
command  of  the  President.  A  different  construction,  giving  to 
Congress  the  right  to  determine  when  these  special  cases  exist, 

^  Senate  Documents,  13  Cong.,  3  Sess.,  Report  of  the  Committee  on 
Military  Ajffairs,  February  28,  181 5,  38-42. 


270  NATIONAL  SOVEREIGNTY 

authorizing  them  to  call  forth  the  whole  of  the  militia,  and 
taking  them  from  the  Commanders-in-Chief  of  the  several 
states,  and  subjecting  them  to  the  command  of  the  President, 
would  place  all  the  mihtia,  in  effect,  at  the  will  of  Congress, 
and  produce  a  military  consoHdation  of  the  states,  without  any 
constitutional  remedy  against  the  intentions  of  the  people, 
when  ratifying  the  Constitution.  Indeed,  since  passing  the 
act  of  Congress  of  February  28,  1795,  chapter  loi,  vesting  in 
the  President  the  power  of  calling  forth  the  militia  when  the 
exigencies  mentioned  in  the  Constitution  shall  exist,  if  the 
President  has  the  power  of  determining  when  those  exigencies 
exist,  the  militia  in  the  several  states  is,  in  effect,  at  his  com- 
mand, and  subject  to  his  control. 

No  inconvenience  can  reasonably  be  presumed  to  result  from 
the  construction  which  vests  in  the  Commanders-in-Chief  of 
the  militia,  in  the  several  states,  the  right  of  determining  when 
the  exigencies  exist,  obliging  them  to  place  the  militia  in  the 
service  of  the  United  States.  These  exigencies  are  of  such  a 
nature,  that  the  existence  of  them  can  be  easily  ascertained 
by,  or  made  known  to,  the  Commanders-in-Chief  of  the  militia; 
and  when  ascertained,  the  public  interest  will  produce  prompt 
obedience  to  the  acts  of  Congress. 

Another  question  proposed  to  the  consideration  of  the 
judges,  is,  whether,  when  either  of  the  exigencies  exist,  author- 
izing the  employing  of  the  mihtia  in  the  service  of  the  United 
States,  the  mihtia  thus  employed  can  be  lawfully  commanded 
by  any  officer  not  of  the  mihtia,  except  by  the  President  of  the 
United  States? 

.  .  .  The  officers  of  the  militia  are  to  be  appointed  by  the 
states,  and  the  President  may  exercise  his  command  of  the 
militia  by  the  officers  of  the  militia,  duly  appointed;  but  we 
know  of  no  constitutional  provision  authorizing  any  officer  of 
the  army  of  the  United  States  to  command  the  militia,  or 
authorizing  any  officer  of  the  mihtia  to  command  the  army  of 
the  United  States.  The  Congress  may  provide  laws  for  the 
government  of  the  militia  when  in  actual  service;  but  to  extend 
this  power  to  placing  them  under  the  command  of  an  officer 


NULLIFICATION  IN  NEW  ENGLAND      271 

not  of  the  militia,  except  the  President,  would  render  nugatory 
the  provision  that  the  mihtia  are  to  have  officers  appointed  by 

the  states.  .  .  . 

86.  Martin  v.  Mott.^ 

Mr.  Justice  Story  delivered  the  opinion  of  the  Court : 

...  It  has  not  been  denied  here  that  the  act  of  1795  is 
within  the  constitutional  authority  of  Congress,  or  that  Con- 
gress may  not  lawfully  provide  for  cases  of  imminent  danger  of 
invasion,  as  well  as  for  cases  where  an  invasion  has  actually 
taken  place.  In  our  opinion  there  is  no  ground  for  a  doubt  on 
this  point,  even  if  it  had  been  relied  on,  for  the  power  to  pro- 
vide for  repelling  invasions  includes  the  power  to  provide 
against  the  attempt  and  danger  of  invasion,  as  the  necessary 
and  proper  means  to  effectuate  the  object.  One  of  the  best 
means  to  repel  invasion  is  to  provide  the  requisite  force  for 
action  before  the  invader  himself  has  reached  the  soil. 

The  pov/er  thus  confided  by  Congress  to  the  President,  is, 
doubtless  of  a  very  high  and  delicate  nature.  A  free  people  are 
naturally  jealous  of  the  exercise  of  military  power;  and  the 
power  to  call  the  militia  into  actual  service  is  certainly  felt  to 
be  one  of  no  ordinary  magnitude.  But  it  is  not  a  power  which 
can  be  executed  without  a  correspondent  responsibihty.  It  is,  in 
its  terms,  a  limited  power,  confined  to  cases  of  actual  invasion, 
or  of  imminent  danger  of  invasion.  If  it  be  a  limited  power, 
the  question  arises,  by  whom  is  the  exigency  to  be  judged 
of  and  decided?  Is  the  President  the  sole  and  exclusive  judge 
whether  the  exigency  has  arisen,  or  is  it  to  be  considered  as  an 
open  question,  upon  which  every  officer  to  whom  the  orders  of 
the  President  are  addressed,  may  decide  for  himself,  and 
equally  open  to  be  contested  by  every  militia-man  who  shall 
refuse  to  obey  the  orders  of  the  President?  We  are  all  of  the 
opinion  that  the  authority  to  decide  whether  the  exigency  has 
arisen  belongs  exclusively  to  the  President,  and  that  his  de' 
cision  is  conclusive  upon  all  other  persons.  We  think  that  this 
construction  necessarily  results  from  the  nature  of  the  power 
^  Supreme  Court  of  the  United  States,  1827.   12  Wheaton,  19. 


272  NATIONAL  SOVEREIGNTY 

itself,  and  from  the  manifest  object  contemplated  by  the  act 
of  Congress.  The  power  itself  is  to  be  exercised  upon  sudden 
emergencies,  upon  great  occasions  of  state,  and  under  circum- 
stances which  may  be  vital  to  the  existence  of  the  Union.  A 
prompt  and  unhesitating  obedience  to  orders  is  indispensable 
to  the  complete  attainment  of  the  object.  The  service  is  a  mili- 
tary service,  and  the  command  of  a  military  nature ;  and  in  such 
cases,  every  delay,  and  every  obstacle  to  an  efficient  and  im- 
mediate compliance,  necessarily  tend  to  jeopard  the  pubhc  in- 
terests. While  subordinate  officers  or  soldiers  are  pausing 
to  consider  whether  they  ougnt  to  obey,  or  are  scrupulously 
weighing  the  evidence  of  the  facts  upon  which  the  commander- 
in-chief  exercises  the  right  to  demand  their  services,  the  hostile 
enterprise  may  be  accomplished  without  the  means  of  resist- 
ance. If  "  the  power  of  regulating  the  militia,  and  of  command- 
ing its  services  in  times  of  insurrection  and  invasion,  are  (as  it 
has  been  emphatically  said  they  are)  natural  incidents  to  the 
duties  of  superintending  the  common  defense,  and  of  watching 
over  the  internal  peace  of  the  confederacy,"  these  powers  must 
be  so  construed  as  to  the  modes  of  their  exercise  as  not  to  defeat 
the  great  end  in  view.  If  a  superior  officer  has  a  right  to  con- 
test the  orders  of  the  President  upon  his  own  doubts  as  to  the 
exigency  having  arisen,  it  must  be  equally  the  right  of  every 
inferior  officer  and  soldier;  and  any  act  done  by  any  person  in 
furtherance  of  such  orders  would  subject  him  to  responsibility 
in  a  civil  suit,  in  which  his  defense  must  finally  rest  upon  his 
ability  to  establish  the  facts  by  competent  proofs.  Such  a 
course  would  be  subversive  of  all  discipline,  and  expose  the 
best-disposed  officers  to  the  chances  of  ruinous  litigation. 
Besides,  in  many  instances,  the  evidence  upon  which  the 
President  might  decide  that  there  is  imminent  danger  of  inva- 
sion, might  be  of  a  nature  not  constituting  strict  technical 
proof,  or  the  disclosure  of  the  evidence  might  reveal  important 
secrets  of  state,  which  the  public  interest,  and  even  safety, 
might  imperiously  demand  to  be  kept  in  concealment.  .  .  . 


CHAPTER  XXX 

THE     DOCTRINE     OF     LIBERAL     CONSTRUCTION     OF     THE 
CONSTITUTION 

The  case  of  M'CuUoch  v.  Maryland  came  before  the  Supreme  Court  on 
writ  of  error  from  the  Court  of  Appeals  of  that  Commonwealth.  M'CuK 
loch,  cashier  of  the  Baltimore  branch  of  the  Bank  of  the  United  States, 
had  violated  a  law  of  Maryland  which  imposed  a  tax  on  all  banks  not 
chartered  by  the  legislature;  and  judgment  had  been  rendered  against 
him.  The  plaintiff  in  error  now  contested  the  validity  of  the  act  passed 
by  the  legislature  of  Maryland,  while  the  defendant,  "a  sovereign  State," 
denied  the  obligation  of  the  act  of  Congress  which  incorporated  the 
national  bank.  In  delivering  the  opinion  of  the  Court,  Mr.  Chief  Justice 
Marshall  stated  in  phraseology  which  has  become  classic  the  doctrine  of 
liberal  construction  of  the  Constitution. 

87.  M'CuUoch  V.  The  State  of  Maryland  et  al.^ 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  Court : 
The  first  question  made  in  the  cause  is,  has  Congress  power 
to  incorporate  a  bank?  .  .  . 

If  any  one  proposition  could  command  the  universal  assent 
of  mankind,  we  might  expect  that  it  would  be  this:  that  the 
government  of  the  Union,  though  limited  in  its  powers,  is 
supreme  within  its  sphere  of  action.  This  would  seem  to  result 
necessarily  from  its  nature.  It  is  the  government  of  all;  its 
powers  are  delegated  by  all;  it  represents  all,  and  acts  for  all. 
Though  any  one  State  may  be  willing  to  control  its  operations, 
no  State  is  willing  to  allow  others  to  control  them.  The  nation, 
on  those  subjects  on  which  it  can  act,  must  necessarily  bind  its 
component  parts.  .  .  . 

Among  the  enumerated  powers,  we  do  not  find  that  of  estab- 
lishing a  bank  or  creating  a  corporation.  But  there  is  no 
phrase  in  the  instrument  which,  like  the  articles  of  confedera- 
tion, excludes  incidental  or  implied  powers;  and  which  requires 
that  everything  granted  shall  be  expressly  and  minutely 
*  Supreme  Court  of  the  United  States,  181 9.  4  Wheaton,  316. 


274  NATIONAL  SOVEREIGNTY 

described.  Even  the  loth  amendment,  which  was  framed  for 
the  purpose  of  quieting  the  excessive  jealousies  which  had  been 
excited,  omits  the  word  ''expressly,"  and  declares  only  that 
the  powers  "not  delegated  to  the  United  States,  nor  prohibited 
to  the  States,  are  reserved  to  the  States  or  to  the  people; "  thus 
leaving  the  question,  whether  the  particular  power  which  may 
become  the  subject  of  contest,  has  been  delegated  to  the  one 
government,  or  prohibited  to  the  other,  to  depend  on  a  fair 
construction  of  the  whole  instrument.  The  men  who  drew  and 
adopted  this  amendment,  had  experienced  the  embarrassments 
resulting  from  the  insertion  of  this  word  in  the  articles  of  con- 
federation, and  probably  omitted  it  to  avoid  those  embarrass- 
ments. A  constitution,  to  contain  an  accurate  detail  of  all  the 
subdi\dsions  of  which  its  great  powers  will  admit,  and  of  all 
the  means  by  which  they  may  be  carried  into  execution,  would 
partake  of  the  prolixity  of  a  legal  code,  and  could  scarcely  be 
embraced  by  the  human  mind.  It  would  probably  never  be 
understood  by  the  pubHc.  Its  nature,  therefore,  requires,  that 
only  its  great  outlines  should  be  marked,  its  important  objects 
designated,  and  the  minor  ingredients  which  compose  those 
objects  be  deduced  from  the  nature  of  the  objects  themselves. 
That  this  idea  was  entertained  by  the  framers  of  the  American 
constitution,  is  not  only  to  be  inferred  from  the  nature  of  the 
instrument,  but  from  the  language.  Why  else  were  some  of  the 
hmitations,  found  in  the  9th  section  of  the  ist  article,  intro- 
duced? It  is  also,  in  some  degree,  warranted  by  their  having 
omitted  to  use  any  restrictive  term  which  might  prevent  its 
receiving  a  fair  and  just  interpretation.  In  considering  this 
question,  then,  we  must  never  forget,  that  it  is  a  constitution 
we  are  expounding. 

Although,  among  the  enumerated  powers  of  government,  we 
do  not  find  the  word  "bank,"  or  "incorporation,"  we  find  the 
great  powers  to  lay  and  collect  taxes;  to  borrow  money;  to 
regulate  commerce;  to  declare  and  conduct  war;  and  to  raise 
and  support  armies  and  navies.  The  sword  and  the  purse,  all 
the  external  relations,  and  no  inconsiderable  portion  of  the 
industry  of  the  nation,  are  intrusted  to  its  government.  It  can 


DOCTRINE  OF  LIBERAL  CONSTRUCTION  275 

never  be  pretended  that  these  vast  powers  draw  after  them 
others  of  inferior  importance,  merely  because  they  are  inferior. 
Such  an  idea  can  never  be  advanced.  But  it  may,  with  great 
reason,  be  contended,  that  a  government,  intrusted  with  such 
ample  powers,  on  the  due  execution  of  which  the  happiness  and 
prosperity  of  the  nation  so  vitally  depends,  must  also  be  in- 
trusted with  ample  means  for  their  execution.  The  power  being 
given,  it  is  the  interest  of  the  nation  to  facilitate  its  execution. 
It  can  never  be  their  interest,  and  cannot  be  presumed  to  have 
been  their  intention,  to  clog  and  embarrass  its  execution  by 
withholding  the  most  appropriate  means.  Throughout  this  vast 
republic,  from  the  St.  Croix  to  the  Gulf  of  Mexico,  from  the  At- 
lantic to  the  Pacific,  revenue  is  to  be  collected  and  expended, 
armies  are  to  be  marched  and  supported.  The  exigencies  of  the 
nation  may  require,  that  the  treasure  raised  in  the  North  should 
be  transported  to  the  South,  that  raised  in  the  East  conveyed  to 
the  West,  or  that  this  order  should  be  reversed.  Is  that  con- 
struction of  the  constitution  to  be  preferred  which  would  ren- 
der these  operations  difficult,  hazardous,  and  expensive?  Can 
we  adopt  that  construction  (unless  the  words  imperiously 
require  it)  which  would  impute  to  the  framers  of  that  instru- 
ment, when  granting  these  powers  for  the  public  good,  the 
intention  of  impeding  their  exercise  by  withholding  a  choice  of 
means?  If,  indeed,  such  be  the  mandate  of  the  constitution, 
we  have  only  to  obey;  but  that  instrument  does  not  profess 
to  enumerate  the  means  by  which  the  powers  it  confers  may 
be  executed;  nor  does  it  prohibit  the  creation  of  a  corporation, 
if  the  existence  of  such  a  being  be  essential  to  the  beneficial 
exercise  of  those  powers.  It  is,  then,  the  subject  of  fair  inquiry, 
how  far  such  means  may  be  employed.  .  .  . 

The  power  of  creating  a  corporation,  though  appertaining 
to  sovereignty,  is  not,  like  the  power  of  making  war,  or  lev>ing 
taxes,  or  of  regulating  commerce,  a  great  substantive  and  inde- 
pendent power,  which  cannot  be  implied  as  incidental  to  other 
powers,  or  used  as  a  means  of  executing  them.  It  is  never  the 
end  for  which  other  powers  are  exercised,  but  a  means  by  which 
other  objects  are  accomplished.  ...  No  sufficient  reason  is, 


276  NATIONAL  SOVEREIGNTY 

therefore,  perceived,  why  it  may  not  pass  as  incidental  to  those 
powers  which  are  expressly  given,  if  it  be  a  direct  mode  of 
executing  them. 

But  the  constitution  of  the  United  States  has  not  left  the 
right  of  Congress  to  employ  the  necessary  means,  for  the  execu- 
tion of  the  powers  conferred  on  the  government,  to  general 
reasoning.  To  its  enumeration  of  powers  is  added  that  of  mak- 
ing "all  laws  which  shall  be  necessary  and  proper,  for  carrying 
into  execution  the  foregoing  powers,  and  all  other  powers  vested 
by  this  constitution,  in  the  government  of  the  United  States, 
or  in  any  department  thereof." 

The  counsel  for  the  State  of  Maryland  have  urged  various 
arguments,  to  prove  that  this  clause,  though  in  terms  a  grant 
of  power,  is  not  so  in  effect;  but  is  really  restrictive  of  the 
general  right,  which  might  otherwise  be  impUed,  of  selecting 
means  for  executing  the  enumerated  powers.  »  .  . 

But  the  argument  on  which  most  reliance  is  placed,  is  drawn 
from  the  peculiar  language  of  this  clause.  Congress  is  not  em- 
powered by  it  to  make  all  laws,  which  may  have  relation  to  the 
powers  conferred  on  the  government,  but  only  such  as  may  be 
"  necessary  and  proper  "  for  carrying  them  into  execution.  The 
word  "necessary"  is  considered  as  controlling  the  whole  sen- 
tence, and  as  limiting  the  right  to  pass  laws  for  the  execution 
of  the  granted  powers,  to  such  as  are  indispensable,  and  with- 
out which  the  power  would  be  nugatory.  That  it  excludes  the 
choice  of  means,  and  leaves  to  Congress,  in  each  case,  that  only 
which  is  most  direct  and  simple. 

Is  it  true,  that  this  is  the  sense  in  which  the  word  "neces- 
sary" is  always  used?  Does  it  always  import  an  absolute 
physical  necessity,  so  strong,  that  one  thing,  to  which  another 
may  be  termed  necessary,  cannot  exist  without  that  other?  We 
think  it  does  not.  If  reference  be  had  to  its  use,  in  the  common 
affairs  of  the  world,  or  in  approved  authors,  we  find  that  it 
frequently  imports  no  more  than  that  one  thing  is  convenient, 
or  useful,  or  essential  to  another.  To  employ  the  means  neces- 
sary to  an  end,  is  generally  understood  as  employing  any  means 
calculated  to  produce  the  end,  and  not  as  being  confined  to 


DOCTRINE  OF  LIBERAL  CONSTRUCTION  277 

those  single  means,  without  which  the  end  would  be  entirely 
unattainable.  Such  is  the  character  of  human  language,  that 
no  word  conveys  to  the  mind,  in  all  situations,  one  single 
definite  idea ;  and  nothing  is  more  common  than  to  use  words 
in  a  figurative  sense.  Almost  all  compositions  contain  words, 
which,  taken  in  their  rigorous  sense,  would  convey  a  meaning 
different  from  that  which  is  obviously  intended.  It  is  essential 
to  just  construction,  that  many  words  which  import  something 
excessive,  should  be  understood  in  a  more  mitigated  sense  — 
in  that  sense  which  common  usage  justifies.  The  word  "neces- 
sary" is  of  this  description.  It  has  not  a  fixed  character  pecu- 
liar to  itself.  It  admits  of  all  degrees  of  comparison;  and  is 
often  connected  with  words,  which  increase  or  diminish  the 
impression  the  mind  receives  of  the  urgency  it  imports.  A 
thing  may  be  necessary,  very  necessary,  absolutely  or  indis- 
pensably necessary.  To  no  mind  would  the  same  idea  be  con- 
veyed, by  these  several  phrases.  This  comment  on  the  word  is 
well  illustrated,  by  the  passage  cited  at  the  bar,  from  the  loth 
section  of  the  ist  article  of  the  constitution.  It  is,  we  think, 
impossible  to  compare  the  sentence  which  prohibits  a  State 
from  laying  "imposts,  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspection 
laws,"  with  that  which  authorizes  Congress  "to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  into  execu- 
tion" the  powers  of  the  general  government,  without  feeling  a 
conviction  that  the  convention  understood  itself  to  change 
materially  the  meaning  of  the  word  "necessary"  by  prefixing 
the  word  "absolutely."  This  word,  then,  hke  others,  is  used 
in  various  senses;  and,  in  its  construction,  the  subject,  the  con- 
text, the  intention  of  the  person  using  them,  are  all  to  be  taken 
into  view. 

Let  this  be  done  in  the  case  under  consideration.  The  sub- 
ject is  the  execution  of  those  great  powers  on  which  the  welfare 
of  a  nation  essentially  depends.  It  must  have  been  the  inten- 
tion of  those  who  gave  these  powers,  to  insure  as  far  as  human 
prudence  could  insure,  their  beneficial  execution.  This  could 
not  be  done  by  confining  the  choice  of  means  to  such  narrow 


278  NATIONAL  SOVEREIGNTY 

limits  as  not  to  leave  it  in  the  power  of  Congress  to  adopt  any 
vvhich  might  be  appropriate,  and  which  were  conducive  to  the 
end.  This  provision  is  made  in  a  constitution  intended  to 
endure  for  ages  to  come,  and,  consequently,  to  be  adapted  to 
the  various  crises  of  human  affairs.  To  have  prescribed  the 
means  by  which  government  should,  in  all  future  time,  execute 
its  powers,  would  have  been  to  change,  entirely,  the  character 
of  the  instrum-ent,  and  give  it  the  properties  of  a  legal  code. 
It  would  have  been  an  unwise  attempt  to  provide,  by  immut- 
able rules,  for  exigencies  which,  if  foreseen  at  all,  must  have 
been  seen  dimly,  and  which  can  be  best  provided  for  as  they 
occur.  To  have  declared  that  the  best  means  shall  not  be  used, 
but  those  alone  without  which  the  power  given  would  be  nuga- 
tory, would  have  been  to  deprive  the  legislature  of  the  capacity 
to  avail  itself  of  experience,  to  exercise  its  reason,  and  to  accom- 
modate its  legislation  to  circumstances.  .  .  . 

.  .  .  This  clause,  as  construed  by  the  State  of  Maryland, 
would  abridge  and  almost  annihilate  this  useful  and  necessary 
right  of  the  legislature  to  select  its  means.  That  this  could  not 
be  intended,  is,  we  should  think,  had  it  not  been  already  con- 
troverted, too  apparent  for  controversy.  We  think  so  for  the 
following  reasons :  — 

1.  The  clause  is  placed  among  the  powers  of  Congress,  not 
among  the  limitations  on  those  powers. 

2.  Its  terms  purport  to  enlarge,  not  to  diminish  the  powers 
vested  in  the  government.  It  purports  to  be  an  additional 
power,  not  a  restriction  on  those  already  granted.  No  reason 
has  been  or  can  be  assigned,  for  thus  concealing  an  intention 
to  narrow  the  discretion  of  the  national  legislature,  under 
words  which  purport  to  enlarge  it.  The  framers  of  the  consti- 
tution wished  its  adoption,  and  well  knew  that  it  would  be 
endangered  by  its  strength,  not  by  its  weakness.  Had  they 
been  capable  of  using  language  which  would  convey  to  the  eye 
one  idea,  and  after  deep  reflection,  impress  on  the  mind  an- 
other, they  would  rather  have  disguised  the  grant  of  power, 
than  its  limitation.  If  then,  their  intention  had  been,  by  this 
clause,  to  restrain  the  free  use  of  means  which  might  otherwise 


DOCTRINE  OF  LIBERAL  CONSTRUCTION   279 

have  been  implied,  that  intention  would  have  been  inserted  in 
another  place,  and  would  have  been  expressed  in  terms  resem- 
bling these:  "In  carrying  into  execution  the  foregoing  powers, 
and  all  others,"  &c.,  "no  laws  shall  be  passed  but  such  as  are 
necessary  and  proper."  Had  the  intention  been  to  make  this 
clause  restrictive,  it  would  unquestionably  have  been  so  in  form 
as  well  as  in  effect. 

The  result  of  the  most  careful  and  attentive  consideration 
bestowed  upon  this  clause  is,  that  if  it  does  not  enlarge,  it 
cannot  be  construed  to  restrain  the  powers  of  Congress,  or  to 
impair  the  right  of  the  legislature  to  exercise  its  best  judgment 
in  the  selection  of  measures,  to  carry  into  execution  the  consti- 
tutional powers  of  the  government.  If  no  other  motive  for  its 
insertion  can  be  suggested,  a  sufficient  one  is  found  in  the  desire 
to  remove  all  doubts  respecting  the  right  to  legislate  on  that 
vast  mass  of  incidental  powers  which  must  be  involved  in  the 
constitution,  if  that  instrument  be  not  a  splendid  bauble. 

We  admit,  as  all  must  admit,  that  the  powers  of  the  govern- 
ment are  limited,  and  that  its  hmits  are  not  to  be  transcended. 
But  we  think  the  sound  construction  of  the  constitution  must 
allow  to  the  national  legislature  that  discretion,  with  respect 
to  the  means  by  which  the  powers  it  confers  are  to  be  carried 
into  execution,  which  will  enable  that  body  to  perform  the  high 
duties  assigned  to  it,  in  the  manner  most  beneficial  to  the  peo- 
ple. Let  the  end  be  legitimate,  let  it  be  within  the  scope  of  the 
constitution,  and  all  means  which  are  appropriate,  which  are 
plainly  adapted  to  that  end,  which  are  not  prohibited,  but  con- 
sist with  the  letter  and  spirit  of  the  constitution,  are  constitu- 
tional. .  .  . 

After  the  most  deliberate  consideration,  it  is  the  unanimous 
and  decided  opinion  of  this  court,  that  the  act  to  incorporate 
the  Bank  of  the  United  States  is  a  law  made  in  pursuance  of  the 
constitution,  and  is  a  part  of  the  supreme  law  of  the  land.  .  .  . 
It  being  the  opinion  of  the  court  that  the  act  incorporating 
the  bank  is  constitutional;  and  that  the  power  of  establishing 
a  branch  in  the  State  of  Maryland  might  be  properly  exercised 
by  the  bank  itself,  we  proceed  to  inquire:  — 


28o  NATIONAL  SOVEREIGNTY 

2.  Whether  the  State  of  Maryland  may,  without  violating 
the  constitution,  tax  that  branch? 

That  the  power  of  taxation  is  one  of  vital  importance;  that 
it  is  retained  by  the  States;  that  it  is  not  abridged  by  the  grant 
of  a  similar  power  to  the  government  of  the  Union;  that  it  is  to 
be  concurrently  exercised  by  the  two  governments:  are  truths 
which  have  never  been  denied.  But,  such  is  the  paramount 
character  of  the  constitution,  that  its  capacity  to  withdraw 
any  subject  from  the  action  of  even  this  power,  is  admitted. 
The  States  are  expressly  forbidden  to  lay  any  duties  on  imports 
or  exports,  except  what  may  be  absolutely  necessary  for  exe- 
cuting their  inspection  laws.  If  the  obligation  of  this  prohibi- 
tion must  be  conceded  —  if  it  may  restrain  a  State  from  the 
exercise  of  its  taxing  power  on  imports  and  exports;  the  same 
paramount  character  would  seem  to  restrain,  as  it  certainly 
may  restrain,  a  State  from  such  other  exercise  of  this  power, 
as  is  in  its  nature  incompatible  with,  and  repugnant  to,  the 
constitutional  laws  of  the  Union.  A  law,  absolutely  repugnant 
to  another,  as  entirely  repeals  that  other  as  if  express  terms  of 
repeal  were  used. 

On  this  ground  the  counsel  for  the  bank  place  its  claim  to  be 
exempted  from  the  power  of  a  State  to  tax  its  operations. 
There  is  no  express  provision  for  the  case,  but  the  claim  has 
been  sustained  on  a  principle  which  so  entirely  pervades  the 
constitution,  is  so  intermixed  with  the  materials  which  com- 
pose it,  so  interwoven  with  its  web,  so  blended  with  its  texture, 
as  to  be  incapable  of  being  separated  from  it,  without  rending 
it  into  shreds. 

This  great  principle  is,  that  the  constitution  and  the  laws 
made  in  pursuance  thereof  are  supreme ;  that  they  control  the 
constitution  and  laws  of  the  respective  States,  and  cannot  be 
controlled  by  them.  From  this,  which  may  be  almost  termed 
an  axiom,  other  propositions  are  deduced  as  corollaries,  on  the 
truth  or  error  of  which,  and  on  their  application  to  this  case, 
the  cause  has  been  supposed  to  depend.  These  are,  i.  That  a 
power  to  create  implies  a  power  to  preserve.  2.  That  a  power 
to  destroy,  if  wielded  by  a  different  hand,  is  hostile  to,  and  in- 


DOCTRINE  OF  LIBERAL  CONSTRUCTION   281 

compatible  with,  these  powers  to  create  and  preserve.  3.  That 
where  this  repugnancy  exists,  that  authority  which  is  supreme 
must  control,  not  yield  to  that  over  which  it  is  supreme.  .  .  , 

The  power  of  Congress  to  create,  and  of  course  to  continue, 
the  bank,  was  the  subject  of  the  preceding  part  of  this  opinion; 
and  is  no  longer  to  be  considered  as  questionable.  .  .  . 

That  the  power  to  tax  involves  the  power  to  destroy;  that 
the  power  to  destroy  may  defeat  and  render  useless  the  power 
to  create;  that  there  is  a  plain  repugnance,  in  conferring  on  one 
government  a  power  to  control  the  constitutional  measures  of 
another,  which  other,  with  respect  to  those  very  measures,  is 
declared  to  be  supreme  over  that  which  exerts  the  control,  are 
propositions  not  to  be  denied.  But  all  inconsistencies  are  to  be 
reconciled  by  the  magic  of  the  word  confidence.  Taxation,  it  is 
said,  does  not  necessarily  and  unavoidably  destroy.  To  carry 
it  to  the  excess  of  destruction  would  be  an  abuse,  to  presume 
which,  would  banish  that  confidence  which  is  essential  to  all 
government.  .  .  . 

If  we  apply  the  principle  for  which  the  State  of  Maryland 
contends,  to  the  constitution  generally,  we  shall  find  it  capable 
of  changing  totally  the  character  of  that  instrument.  We  shall 
find  it  capable  of  arresting  all  the  measures  of  the  government, 
and  of  prostrating  it  at  the  foot  of  the  States.  The  American 
people  have  declared  their  constitution,  and  the  laws  made  in 
pursuance  thereof,  to  be  supreme;  but  this  principle  would 
transfer  the  supremacy,  in  fact,  to  the  State.  .  .  . 

The  court  has  bestowed  on  this  subject  its  most  deliberate 
consideration.  The  result  is  a  conviction  that  the  States  have 
no  power,  by  taxation  or  otherwise,  to  retard,  impede,  burden, 
or  in  any  manner  control,  the  operations  of  the  constitutional 
laws  enacted  by  Congress  to  carry  into  execution  the  powers 
vested  in  the  general  government.  This  is,  we  think,  the  una- 
voidable consequence  of  that  supremacy  which  the  constitution 
has  declared. 

We  are  unanimously  of  opinion,  that  the  law  passed  by  the 
legislature  of  Maryland,  imposing  a  tax  on  the  Bank  of  the 
United  States,  is  unconstitutional  and  void.  .  .  . 


CHAPTER  XXXI 

JURISDICTION    OF  THE    SUPREME    COURT   OVER    STATE 

COURTS 

In  two  notable  cases,  Martin  v.  Hunter's  Lessee,  and  Cohens  v.  Virginia, 
the  Supreme  Court  of  the  United  States  asserted  the  right  to  review  and 
reverse  decisions  of  the  State  courts  when  those  decisions  were  adverse  to 
alleged  federal  rights.  In  both  cases  the  twenty-fifth  section  of  the  Judi- 
ciary Act  of  1789  was  under  fire.  In  the  case  of  Cohens  v.  Virginia,  the 
counsel  for  the  Commonwealth  said:  "The  appellate  jurisdiction  conferred 
by  the  Constitution  on  the  Supreme  Court  is  merely  authority  to  revise 
the  decisions  of  the  inferior  courts  of  the  United  States.  .  .  .  Appellate 
jurisdiction  signifies  judicial  power  over  the  decisions  of  inferior  tribunals 
of  the  same  sovereignty.  .  .  .  Congress  is  not  authorized  to  make  the 
supreme  court  or  any  other  court  of  a  State  an  inferior  court.  .  .  .  The 
inferior  courts  spoken  of  in  the  Constitution  are  manifestly  to  be  held 
by  federal  judges.  The  judicial  power  to  be  exercised  is  the  judicial 
power  of  the  United  States;  the  errors  to  be  corrected  are  those  of 
that  judicial  power;  and  there  can  be  no  inferior  courts  exercising  the 
judicial  power  of  the  United  States  other  than  those  constituted  and 
ordained  by  Congress."  Tliese  contentions  are  fully  met  in  the  following 
selection  from  the  opinion  of  the  Court  in  the  case  of  Cohens  v.  Virginia. 

88.  Martin,  Heir  at  Law  and  Devisee  of  Fairfax,  v.  Hunter's 

Lessee.^ 

Mr.  Justice  Story  delivered  the  opinion  of  the  Court: 

This  is  a  writ  of  error  from  the  court  of  appeals  of  Virginia, 
founded  upon  the  refusal  of  that  court  to  obey  the  mandate 
of  this  court,  requiring  the  judgment  rendered  in  this  very 
cause,  at  February  term,  1813,  to  be  carried  into  due  execution. 
The  following  is  the  judgment  of  the  court  of  appeals  rendered 
on  the  mandate:  "The  court  is  unanimously  of  opinion,  that 
the  appellate  power  of  the  supreme  court  of  the  United  States 
does  not  extend  to  this  court,  under  a  sound  construction  of  the 
constitution  of  the  United  States;  that  so  much  of  the  25th 
section  of  the  act  of  Congress  to  establish  the  judicial  courts  of 
the  United  States,  as  extends  the  appellate  jurisdiction  of  the 
1  Supreme  Court  of  the  United  States,  1816.  i  Wheaton,  304. 


JURISDICTION  OF  SUPREME  COURT    283 

supreme  court  to  this  court,  is  not  in  pursuance  of  the  constitu- 
tion of  the  United  States;  that  the  writ  of  error  in  this  cause 
was  improvidently  allowed  under  the  authority  of  that  act; 
that  the  proceedings  thereon  in  the  supreme  court  were  coram 
nonjtidice,  in  relation  to  this  court,  and  that  obedience  to  its 
mandate  be  declined  by  the  court."  .  .  . 

The  third  article  of  the  constitution  is  that  which  must  prin- 
cipally attract  our  attention.  .  .  . 

This  leads  us  to  the  consideration  of  the  great  question  as  to 
the  nature  and  extent  of  the  appellate  jurisdiction  of  the 
United  States.  We  have  already  seen  that  appellate  jurisdic- 
tion is  given  by  the  constitution  to  the  supreme  court  in  all 
cases  where  it  has  not  original  jurisdiction,  subject,  however, 
to  such  exceptions  and  regulations  as  Congress  may  prescribe. 
It  is,  therefore,  capable  of  embracing  every  case  enumerated 
in  the  constitution,  which  is  not  exclusively  to  be  decided  by 
way  of  original  jurisdiction.  But  the  exercise  of  appellate 
jurisdiction  is  far  from  being  limited  by  the  terms  of  the  consti- 
tution to  the  supreme  court.  There  can  be  no  doubt  that  Con- 
gress may  create  a  succession  of  inferior  tribunals,  in  each  of 
which  it  may  vest  appellate  as  well  as  original  jurisdiction. 
The  judicial  power  is  delegated  by  the  constitution  in  the  most 
general  terms,  and  may,  therefore,  be  exercised  by  Congress 
under  every  variety  of  form,  of  appellate  or  original  jurisdic- 
tion. And  as  there  is  nothing  in  the  constitution  which  restrains 
or  limits  this  power,  it  must,  therefore,  in  all  other  cases,  sub- 
sist in  the  utmost  latitude  of  which,  in  its  own  nature,  it  is 
susceptible. 

As,  then,  by  the  terms  of  the  constitution,  the  appellate 
jurisdiction  is  not  limited  as  to  the  supreme  court,  and  as  to 
this  court  it  may  be  exercised  in  all  other  cases  than  those  of 
which  it  has  original  cognizance,  what  is  there  to  restrain  its 
exercise  over  state  tribunals  in  the  enumerated  cases?  The 
appellate  power  is  not  limited  by  the  terms  of  the  third  article 
to  any  particular  courts.  The  words  are,  "the  judicial  power 
(which  includes  appellate  power)  shall  extend  to  all  cases," 
&c.,  and  "in  all  other  cases  before  mentioned  the  supreme 


284  NATIONAL  SOVEREIGNTY 

court  shall  have  appellate  jurisdiction."  It  is  the  case,  then, 
and  not  the  court,  that  gives  the  jurisdiction.  If  the  judicial 
power  extends  to  the  case,  it  will  be  in  vain  to  search  in  the 
letter  of  the  constitution  for  any  qualifications  as  to  the 
tribunal  where  it  depends.  It  is  incumbent,  then,  upon  those 
who  assert  such  a  qualification  to  show  its  existence  by  neces- 
sary implication.  If  the  text  be  clear  and  distinct,  no  restric- 
tion upon  its  plain  and  obvious  import  ought  to  be  admitted, 
unless  the  inference  be  irresistible. 

If  the  constitution  meant  to  limit  the  appellate  jurisdiction 
to  cases  pending  in  the  courts  of  the  United  States,  it  would 
necessarily  follow  that  the  jurisdiction  of  these  courts  would, 
in  all  the  cases  enumerated  in  the  constitution,  be  exclusive  of 
state  tribunals.  How  otherwise  could  the  jurisdiction  extend 
to  all  cases  arising  under  the  constitution,  laws,  and  treaties  of 
the  United  States,  or  to  all  cases  of  admiralty  and  maritime 
jurisdiction?  If  some  of  these  cases  might  be  entertained  by 
state  tribunals,  and  no  appellate  jurisdiction  as  to  them  should 
exist,  then  the  appellate  power  would  not  extend  to  all,  but  to 
some,  cases.  If  state  tribunals  might  exercise  concurrent  juris- 
diction over  all  or  some  of  the  other  classes  of  cases  in  the  con- 
stitution without  control,  then  the  appellate  jurisdiction  of  the 
United  States,  might,  as  to  such  cases,  have  no  real  existence, 
contrary  to  the  manifest  intent  of  the  constitution.  Under  such 
circumstances,  to  give  effect  to  the  judicial  power,  it  must  be 
construed  to  be  exclusive;  and  this  not  only  when  the  casus 
foederis  should  arise  directly,  but  when  it  should  arise,  incident- 
ally, in  cases  pending  in  state  courts.  This  construction  would 
abridge  the  jurisdiction  of  such  court  far  more  than  has  been 
ever  contemplated  in  any  act  of  Congress. 

On  the  other  hand,  if,  as  has  been  contended,  a  discretion  be 
vested  in  Congress  to  establish,  or  not  to  establish,  inferior 
courts  at  their  own  pleasure,  and  Congress  should  not  establish 
such  courts,  the  appellate  jurisdiction  of  the  supreme  court 
would  have  nothing  to  act  upon,  unless  it  could  act  upon  cases 
pending  in  the  state  courts.  Under  such  circumstances,  it  must 
be  held  that  the  appellate  power  would  extend  to  state  courts; 


JURISDICTION  OF  SUPREME  COURT    285 

for  the  constitution  is  peremptory  that  it  shall  extend  to  certain 
enumerated  cases,  which  cases  could  exist  in  no  other  courts. 
Any  other  construction,  upon  this  supposition,  would  involve 
this  strange  contradiction,  that  a  discretionary  power  vested 
in  Congress,  and  which  they  might  rightfully  omit  to  exercise, 
would  defeat  the  absolute  injunctions  of  the  constitution  in 
relation  to  the  whole  appellate  power. 

But  it  is  plain  that  the  framers  of  the  constitution  did  con- 
template that  cases  within  the  judicial  cognizance  of  the 
United  States  not  only  might  but  would  arise  in  the  state 
courts,  in  the  exercise  of  their  ordinary  jurisdiction.  With  this 
view  the  sixth  article  declares,  that  "this  constitution,  and  the 
laws  of  the  United  States  which  shall  be  made  in  pursuance 
thereof,  and  all  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of 
the  land,  and-the  judges  in  every  State  shall  be  bound  thereby, 
anything  in  the  constitution,  or  laws  of  any  State  to  the  con- 
trary notwithstanding."  It  is  obvious  that  this  obligation  is 
imperative  upon  the  state  judges  in  their  official,  and  not 
merely  in  their  private,  capacities.  From  the  very  nature  of 
their  judicial  duties  they  would  be  called  upon  to  pronounce 
the  law  applicable  to  the  case  in  judgment.  They  were  not 
to  decide  merely  according  to  the  laws  or  constitution  of  the 
State,  but  according  to  the  constitution,  laws,  and  treaties  of 
the  United  States,  "the  supreme  law  of  the  land." 

A  moment's  consideration  will  show  us  the  necessity  and  pro- 
priety, of  this  provision  in  cases  where  the  jurisdiction  of  the 
state  courts  is  unquestionable.  Suppose  a  contract  for  the 
payment  of  money  is  made  between  citizens  of  the  same  State, 
and  performance  thereof  is  sought  in  the  courts  of  that  State; 
no  person  can  doubt  that  the  jurisdiction  completely  and  exclu- 
sively attaches,  in  the  first  instance,  to  such  courts.  Suppose, 
at  the  trial,  the  defendant  sets  up  in  his  defense  a  tender  under 
a  state  law,  making  paper  money  a  good  tender,  or  a  state  law, 
impairing  the  obligation  of  such  contract,  which  law,  if  bind- 
ing, would  defeat  the  suit.  The  constitution  of  the  United 
States  has  declared  that  no  State  shall  make  anything  but  gold 


286  NATIONAL  SOVEREIGNTY 

or  silver  coin  a  tender  in  payment  of  debts,  or  pass  a  law  impair- 
ing the  obligation  of  contracts.  If  Congress  shall  not  have 
passed  a  law  providing  for  the  removal  of  such  a  suit  to  the 
courts  of  the  United  States,  must  not  the  state  court  proceed 
to  hear  and  determine  it?  Can  a  mere  plea  in  defense  be  of  itself 
a  bar  to  further  proceedings,  so  as  to  prohibit  an  inquiry  into 
its  truth  or  legal  propriety,  w^hen  no  other  tribunal  exists  to 
whom  judicial  cognizance  of  such  cases  is  confided?  Suppose 
an  indictment  for  a  crim.e  in  a  state  court,  and  the  defendant 
should  allege  in  his  defense  that  the  crime  was  created  by  an 
ex  post  facto  act  of  the  State,  nmst  not  the  state  court,  in  the 
exercise  of  a  jurisdiction  which  has  already  rightfully  attached, 
have  a  right  to  pronounce  on  the  validity  and  sufficiency  of  the 
defense?  It  would  be  extremely  difficult,  upon  any  legal  prin- 
ciples, to  give  a  negative  answer  to  these  inquiries.  Innumer- 
able instances  of  the  same  sort  might  be  stated  in  illustration 
of  the  position ;  and  unless  the  state  courts  could  sustain  juris- 
diction in  such  cases,  this  clause  of  the  sixth  article  would  be 
without  meaning  or  effect,  and  public  mischiefs,  of  a  most 
enormous  magnitude,  would  inevitably  ensue. 

It  must,  therefore,  be  conceded  that  the  constitution  not 
only  contemplated,  but  meant  to  provide  for  cases  within  the 
scope  of  the  judicial  power  of  the  United  States,  which  might 
yet  depend  before  state  tribunals.  It  was  foreseen  that  in  the 
exercise  of  their  ordinary  jurisdiction,  state  courts  would 
incidentally  take  cognizance  of  cases  arising  under  the  consti- 
tution, the  laws,  and  treaties  of  the  United  States.  Yet  to  all 
these  cases  the  judicial  power,  by  the  very  terms  of  the  constitu- 
tion, is  to  extend.  It  cannot  extend  by  original  jurisdiction  if 
that  was  already  rightfully  and  exclusively  attached  in  the 
state  courts,  which  (as  has  been  already  shown)  may  occur; 
it  must  therefore  extend  by  appellate  jurisdiction,  or  not  at  all. 
It  would  seem  to  follow  that  the  appellate  power  of  the  United 
States  must,  in  such  cases,  extend  to  state  tribunals;  and  if  in 
such  cases,  there  is  no  reason  why  it  should  not  equally  attach 
upon  all  others  within  the  purview  of  the  constitution.  .  .  . 

On  the  whole,  the  court  are  of  opinion,  that  the  appellate 


JURISDICTION  OF  SUPREME  COURT    287 

power  of  the  United  States  does  extend  to  cases  pending  in  the 
state  courts;  and  that  the  25th  section  of  the  Judiciary  Act, 
which  authorizes  the  exercise  of  this  jurisdiction  in  the  specified 
cases,  by  a  writ  of  error,  is  supported  by  the  letter  and  spirit 
of  the  constitution.  We  find  no  clause  in  that  instrument 
which  limits  this  power ;  and  we  dare  not  interpose  a  hmitation 
where  the  people  have  not  been  disposed  to  create  one.  .  .  . 

It  is  the  opinion  of  the  whole  court,  that  the  judgment  of  the 
court  of  appeals  of  Virginia,  rendered  on  the  mandate  in  this 
cause,  be  reversed,  and  the  judgment  of  the  district  court, 
held  at  Winchester,  be,  and  the  same  is  hereby  affirmed. 

89.  Cohens  v.  The  State  of  Virginia} 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  Court : 
.  .  .  The  American  States,  as  well  as  the  American  people, 
have  believed  a  close  and  firm  Union  to  be  essential  to  their 
liberty  and  to  their  happiness.  They  have  been  taught  by 
experience,  that  this  Union  cannot  exist  without  a  government 
for  the  whole ;  and  they  have  been  taught  by  the  same  experience 
that  this  government  would  be  a  mere  shadow,  that  must  dis- 
appoint all  their  hopes,  unless  invested  with  large  portions  of 
that  sovereignty  which  belongs  to  independent  States.  Under 
the  influence  of  this  opinion,  and  thus  instructed  by  experience, 
the  American  people,  in  the  conventions  of  their  respective 
States,  adopted  the  present  constitution. 

If  it  could  be  doubted  whether,  from  its  nature,  it  were  not 
supreme  in  all  cases  where  it  is  empowered  to  act,  that  doubt 
would  be  removed  by  the  declaration  that  "this  constitution, 
and  the  laws  of  the  United  States  which  shall  be  made  in  pur- 
suance thereof,  and  all  treaties  made,  or  which  shall  be  made, 
under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land;  and  the  judges  in  every  State  shall  be  bound 
thereby,  anything  in  the  constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding . ' ' 

This  is  the  authoritative  language  of  the  American  people ; 
and,  if  gentlemen  please,  of  the  American  States.    It  marks 
1  Supreme  Court  of  the  United  States,  1821.  6  Wheaton,  264. 


288  NATIONAL  SOVEREIGNTY 

with  lines  too  strong  to  be  mistaken,  the  characteristic  distinc- 
tion between  the  government  of  the  Union  and  those  of  the 
States.  The  general  government,  though  limited  as  to  its 
objects,  is  supreme  with  respect  to  those  objects.  This  prin- 
ciple is  a  part  of  the  constitution;  and  if  there  be  any  who  deny 
its  necessity,  none  can  deny  its  authority. 

To  this  supreme  government  ample  powers  are  confided;  and 
if  it  were  possible  to  doubt  the  great  purposes  for  which  they 
were  so  confided,  the  people  of  the  United  States  have  declared 
that  they  are  given  "in  order  to  form  a  more  perfect  union, 
establish  justice,  insure  domestic  tranquility,  provide  for  the 
common  defense,  promote  the  general  welfare,  and  secure  the 
blessings  of  liberty  to  themselves  and  their  posterity." 

With  the  ample  powers  confided  to  this  supreme  govern- 
ment, for  these  interesting  purposes,  are  connected  many  ex- 
press and  important  limitations  on  the  sovereignty  of  the 
States,  which  are  made  for  the  same  purposes.  The  powers  of 
the  Union  on  the  great  subjects  of  war,  peace,  and  commerce, 
and  on  many  others,  are  in  themselves  Hmitations  of  the  sover- 
eignty of  the  States;  but  in  addition  to  these,  the  sovereignty 
of  the  States  is  surrendered  in  many  instances  where  the  sur- 
render can  only  operate  to  the  benefit  of  the  people,  and  where, 
perhaps,  no  other  power  is  conferred  on  Congress  than  a  con- 
servative power  to  maintain  the  principles  established  in  the 
constitution.    The  maintenance  of  these  principles  in  their 
purity  is  certainly  among  the  great  duties  of  the  government. 
One  of  the  instruments  by  which  this  duty  may  be  peaceably 
performed  is  the  judicial  department.  It  is  authorized  to  decide 
all  cases,  of  every  description,  arising  under  the  constitution 
or  laws  of  the  United  States.  From  this  general  grant  of  juris- 
diction, no  exception  is  made  of  those  cases  in  which  a  State 
may  be  a  party.  When  w^e  consider  the  situation  of  the  govern- 
ment of  the  Union  and  of  a  State,  in  relation  to  each  other;  the 
nature  of  our  constitution,  the  subordination  of  the  state 
governments  to  the  constitution ;  the  great  purpose  for  which 
jurisdiction  over  all  cases  arising  under  the  constitution  and 
laws  of  the  United  States,  is  confided  to  the  judicial  depart- 


JURISDICTION  OF  SUPREME  COUHT    289 

ment,  are  we  at  liberty  to  insert  in  this  general  grant,  an  excep- 
tion of  those  cases  in  which  a  State  may  be  a  party?  Will  the 
spirit  of  the  constitution  justify  this  attempt  to  control  its 
words?  We  think  it  will  not.  We  think  a  case  arising  under 
the  constitution  or  laws  of  the  United  States,  is  cognizable  in 
the  courts  of  the  Union,  whoever  may  be  the  parties  to  that 
case.  .  .  . 

The  second  objection  to  the  jurisdiction  of  the  court  is,  that 
its  appellate  power  cannot  be  exercised,  in  any  case,  over  the 
judgment  of  a  state  court. 

This  objection  is  sustained  chiefly  by  arguments  drawn  from 
the  supposed  total  separation  of  the  judiciary  of  a  State  from 
that  of  the  Union,  and  their  entire  independence  of  each  other. 
The  argument  considers  the  federal  judiciary  as  completely 
foreign  to  that  of  a  State;  and  as  being  no  more  connected  with 
it,  in  any  respect  whatever,  than  the  court  of  a  foreign  State. 
If  this  hypothesis  be  just,  the  argument  founded  on  it  is 
equally  so;  but  if  the  hypothesis  be  not  supported  by  the 
constitution,  the  argument  fails  with  it. 

This  hypothesis  is  not  founded  on  any  words  in  the  consti- 
tution, which  might  seem  to  countenance  it,  but  on  the  unrea- 
sonableness of  giving  a  contrary  construction  to  words  which 
seem  to  require  it;  and  on  the  incompatibility  of  the  applica- 
tion of  the  appellate  jurisdiction  to  the  judgments  of  state 
courts,  with  that  constitutional  relation  which  subsists  between 
the  government  of  the  Union  and  the  governments  of  those 
States  which  compose  it. 

Let  this  unreasonableness,  this  total  incompatibility,  be 
examined. 

That  the  United  States  form,  for  many,  and  for  most  import- 
ant purposes,  a  single  nation,  has  not  yet  been  denied.  In  war, 
we  are  one  people.  In  making  peace,  we  are  one  people.  In  all 
commercial  regulations,  we  are  one  and  the  same  people.  In 
many  other  respects,  the  American  people  are  one;  and  the 
government  which  is  alone  capable  of  controlling  and  manag- 
ing their  interests,  in  all  these  respects,  is  the  government  of 
the  Union.  It  is  their  government,  and  in  that  character  they 


290  NATIONAL  SOVEREIGNTY 

have  no  other.  America  has  chosen  to  be,  in  many  respects, 
and  to  many  purposes,  a  nation;  and  for  all  these  purposes  her 
government  is  complete;  to  all  these  objects,  it  is  competent. 
The  people  have  declared,  that  in  the  exercise  of  all  powers 
given  for  these  objects,  it  is  supreme.  It  can,  then,  in  effecting 
these  objects,  legitimately  control  all  individuals  or  govern- 
ments within  the  American  territory.  The  constitution  and 
laws  of  a  State,  so  far  as  they  are  repugnant  to  the  constitution 
and  laws  of  the  United  States,  are  absolutely  void.  These 
States  are  constituent  parts  of  the  United  States.  They  are 
members  of  one  great  empire,  —  for  some  purposes  sovereign, 
for  some  purposes  subordinate. 

In  a  government  so  constituted,  is  it  unreasonable  that  the 
judicial  power  should  be  competent  to  give  efficacy  to  the  con- 
stitutional laws  of  the  legislature?  That  department  can  decide 
on  the  validity  of  the  constitution  or  law  of  a  State,  if  it  be 
repugnant  to  the  constitution  or  to  a  law  of  the  United  States. 
Is  it  unreasonable  that  it  should  also  be  empowered  to  decide 
on  the  judgment  of  a  state  tribunal  enforcing  such  unconstitu- 
tional law?  Is  it  so  very  unreasonable  as  to  furnish  a  justifica- 
tion for  controlling  the  words  of  the  constitution? 

We  think  it  is  not.  We  think  that  in  a  government  acknow- 
ledgedly  supreme,  with  respect  to  objects  of  vital  interest  to  the 
nation,  there  is  nothing  inconsistent  with  sound  reason,  nothing 
incompatible  with  the  nature  of  government,  in  making  all  its 
departments  supreme,  so  far  as  respects  those  objects,  and  so 
far  as  is  necessary  to  their  attainment.  The  exercise  of  the 
appellate  power  over  those  judgments  of  the  state  tribunals 
which  may  contravene  the  constitution  or  laws  of  the  United 
States,  is,  we  believe,  essential  to  the  attainment  of  those 
objects.  .  .  . 


CHAPTER  XXXII 

CONSTRUCTIVE   JUDICIAL   INTERPRETATION   OF  THE 
CONSTITUTION 

American  judges  have  never  admitted  that  they  make  law:  they  only 
find  the  law  and  interpret  it.  The  courts  aim  to  ascertain  the  purposes  of 
the  framers  of  laws  and  constitutions.  Nevertheless,  cases  arise  when 
the  constitution  and  laws  must  be  applied  to  conditions  which  the  law- 
makers could  not  have  foreseen.  The  Supreme  Court  has  been  called  upon 
repeatedly  to  decide  what  the  Fathers  would  have  purposed  if  they  could 
have  foreseen  changed  conditions.  The  interpretation  of  the  commerce 
clause  by  the  Supreme  Court,  in  the  case  of  Gibbons  v.  Ogden,  illustrates 
this  interesting  process. 

90.  Gibbons  v.  Ogden} 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  Court: 
The  appellant  contends  that  this  decree  is  erroneous,  because 
the  laws  which  purport  to  give  the  exclusive  privilege  it  sus- 
tains are  repugnant  to  the  constitution  and  laws  of  the  United 
States. 

They  are  said  to  be  repugnant,  — 

1.  To  that  clause  in  the  constitution  which  authorizes  Con- 
gress to  regulate  commerce. 

2 .  To  that  which  authorizes  Congress  to  promote  the  progress 
of  science  and  useful  arts.  .  .  . 

The  words  are:  "  Congress  shall  have  power  to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  States,  and 
with  the  Indian  tribes.''  The  subject  to  be  regulated  is  com- 
merce; and  our  constitution  being,  as  was  aptly  said  at  the 
bar,  one  of  enumeration,  and  not  of  definition,  to  ascertain  the 
extent  of  the  power,  it  becomes  necessary  to  settle  the  meaning 
of  the  word.  The  counsel  for  the  appellee  would  limit  it  to 
traffic,  to  buying  and  selling,  or  the  interchange  of  commodi- 
ties, and  do  not  admit  that  it  comprehends  navigation.  This 
would  restrict  a  general  term,  applicable  to  many  objects,  to 
1  Supreme  Court  of  the  United  States,  1824.  9  Wheaton,  i. 


292  NATIONAL   SOVEREIGNTY 

one  of  its  significations.  Commerce,  undoubtedly,  is  traffic, 
but  it  is  something  more,  —  it  is  intercourse.  It  describes  the 
commercial  intercourse  between  nations,  and  parts  of  nations, 
in  all  its  branches,  and  is  regulated  by  prescribing  rules  for 
carr>ing  on  that  intercourse.  The  mind  can  scarcely  conceive 
a  system  for  regulating  commerce  between  nations  which  shall 
exclude  all  laws  concerning  navigation,  which  shall  be  silent 
on  the  admission  of  the  vessels  of  the  one  nation  into  the  ports 
of  the  other,  and  be  confined  to  prescribing  rules  for  the  con- 
duct of  individuals,  in  the  actual  employment  of  buying  and 
selling,  or  of  barter. 

If  commerce  does  not  include  navigation,  the  government 
of  the  Union  has  no  direct  power  over  that  subject,  and  can 
make  no  law  prescribing  what  shall  constitute  American  ves- 
sels, or  requiring  that  they  shall  be  navigated  by  American 
seamen.  Yet  this  power  has  been  exercised  from  the  commence- 
ment of  the  government,  has  been  exercised  with  the  consent 
of  all,  and  has  been  understood  by  all  to  be  a  commercial  regu- 
lation. All  America  understands,  and  has  uniformly  under- 
stood, the  word  "commerce"  to  comprehend  navigation.  It 
was  so  understood,  and  must  have  been  so  understood,  when 
the  constitution  was  framed.  The  power  over  commerce, 
including  navigation,  was  one  of  the  primary  objects  for  which 
the  people  of  America  adopted  their  government,  and  must 
have  been  contemplated  in  forming  it.  The  convention  must 
have  used  the  word  in  that  sense,  because  all  have  understood 
it  in  that  sense;  and  the  attempt  to  restrict  it  comes  too  late. 

If  the  opinion  that  "commerce,"  as  the  word  is  used  in  the 
constitution,  comprehends  navigation  also,  requires  any  addi- 
tional confirmation,  that  additional  confirmation  is,  we  think, 
furnished  by  the  words  of  the  instrument  itself.  It  is  a  rule  of 
construction  acknowledged  by  all,  that  the  exceptions  from  a 
power  mark  its  extent ;  for  it  would  be  absurd,  as  well  as  useless, 
to  except  from  a  granted  power  that  which  was  not  granted,  — 
that  which  the  words  of  the  grant  could  not  comprehend.  If, 
then,  there  are  in  the  constitution  plain  exceptions  from  the 
power  over  navigation,  plain  inhibitions  to  the  exercise  of  that 


INTERPRETATION  OF  CONSTITUTION    293 

power  in  a  particular  way,  it  is  a  proof  that  those  who  made 
these  exceptions,  and  prescribed  these  inhibitions,  understood 
the  power  to  which  they  applied  as  being  granted. 

The  9th  section  of  the  ist  article  declares  that  "no  prefer- 
ence shall  be  given,  by  any  regulation  of  commerce  or  revenue, 
to  the  ports  of  one  State  over  those  of  another."  This  clause 
cannot  be  understood  as  appHcable  to  those  laws  only  which 
are  passed  for  the  purposes  of  revenue,  because  it  is  expressly 
applied  to  commercial  regulations;  and  the  most  obvious  pre- 
ference which  can  be  given  to  one  port  over  another,  in  regulat- 
ing commerce,  relates  to  navigation.  But  the  subsequent  part 
of  the  sentence  is  still  more  explicit.  It  is,  ''nor  shall  vessels 
bound  to  or  from  one  State,  be  obliged  to  enter,  clear,  or  pay 
duties  in  another."  These  words  have  a  direct  reference  to 
navigation.  .  .  . 

The  word  used  in  the  constitution,  then,  comprehends,  and 
has  been  always  understood  to  comprehend,  navigation  within 
its  meaning;  and  a  power  to  regulate  navigation  is  as  expressly 
granted  as  if  that  term  had  been  added  to  the  word  ''com- 
merce." 

To  what  commerce  does  this  power  extend?  The  constitu- 
tion informs  us,  to  commerce  "with  foreign  nations,  and  among 
the  several  States,  and  with  the  Indian  tribes."  It  has,  we 
believe,  been  universally  admitted  that  these  words  compre- 
hend every  species  of  commercial  intercourse  between  the 
United  States  and  foreign  nations.  No  sort  of  trade  can  be 
carried  on  between  this  country  and  any  other  to  which  this 
power  does  not  extend.  It  has  been  truly  said  that  commerce, 
as  the  word  is  used  in  the  constitution,  is  a  unit,  every  part  of 
which  is  indicated  by  the  term.  If  this  be  the  admitted  mean- 
ing of  the  word,  in  its  application  to  foreign  nations,  it  must 
carry  the  same  meaning  throughout  the  sentence,  and  remain 
a  unit,  unless  there  be  some  plain  intelligible  cause  which 
alters  it. 

The  subject  to  which  the  power  is  next  applied  is  to  com- 
merce " among  the  several  States."  The  word  "among "  means 
intermingled  with.    A  thing  which  is  among  others  is  inter- 


294  NATIONAL  SOVEREIGNTY 

mingled  with  them.  Commerce  among  the  States  cannot  stop 
at  the  external  boundary  line  of  each  State,  but  may  be  intro- 
duced into  the  interior. 

It  is  not  intended  to  say  that  these  words  comprehend  that 
commerce  which  is  com.pletely  internal,  which  is  carried  on 
between  man  and  man  in  a  State,  or  between  different  parts 
of  the  sam.e  State,  and  which  does  not  extend  to  or  affect  other 
States.  Such  a  power  would  be  inconvenient  and  is  certainly 
unnecessary. 

Comprehensive  as  the  word  "among"  is,  it  may  very  pro- 
perly be  restricted  to  that  commerce  which  concerns  more 
States  than  one.  The  phrase  is  not  one  which  would  probably 
have  been  selected  to  indicate  the  completely  interior  traffic 
of  a  State,  because  it  is  not  an  apt  phrase  for  that  purpose; 
and  the  enum.eration  of  the  particular  classes  of  commerce  to 
which  the  power  was  to  be  extended  would  not  have  been  made 
had  the  intention  been  to  extend  the  power  to  every  descrip- 
tion. The  enumeration  presupposes  something  not  enumer- 
ated ;  and  that  something,  if  we  regard  the  language  or  the  sub- 
ject of  the  sentence,  must  be  the  exclusively  internal  commerce 
of  a  State.  The  genius  and  character  of  the  whole  government 
seem  to  be,  that  its  action  is  to  be  applied  to  all  the  external 
concerns  of  the  nation,  and  to  those  internal  concerns  which 
affect  the  States  generally;  but  not  to  those  which  are  com- 
pletely within  a  particular  State,  which  do  not  affect  other 
States,  and  with  which  it  is  not  necessary  to  interfere  for  the 
purpose  of  executing  some  of  the  general  powers  of  the  govern- 
ment. The  completely  internal  commerce  of  a  State,  then,  may 
be  considered  as  reserved  for  the  State  itself. 

But,  in  regulating  commerce  with  foreign  nations,  the  power 
of  Congress  does  not  stop  at  the  jurisdictional  Hues  of  the  sev- 
eral States.  It  would  be  a  very  useless  power  if  it  could  not 
pass  those  lines.  The  commerce  of  the  United  States  with 
foreign  nations  is  that  of  the  whole  United  States.  Every 
district  has  a  right  to  participate  in  it.  The  deep  streams  which 
penetrate  our  country  in  every  direction  pass  through  the 
interior  of  ahnost  every  State  in  the  Union,  and  furnish  the 


INTERPRETATION  OF  CONSTITUTION    295 

means  of  exercising  this  right.  If  Congress  has  the  power  to 
regulate  it,  that  power  must  be  exercised  whenever  the  subject 
exists.  If  it  exists  within  the  States,  if  a  foreign  voyage  may 
commence  or  terminate  at  a  port  within  a  State,  then  the  power 
of  Congress  may  be  exercised  within  a  State. 

This  principle  is,  if  possible,  still  m.ore  clear  when  applied  to 
commerce  ''among  the  several  States."  They  either  join  each 
other,  in  which  case  they  are  separated  by  a  mathematical  Hne, 
or  they  are  remote  from  each  other,  in  which  case  other  States 
lie  between  them.  What  is  com_merce  "among"  them;  and  how 
is  it  to  be  conducted?  Can  a  trading  expedition  between  two 
adjoining  States  commence  and  terminate  outside  of  each? 
And  if  the  trading  intercourse  be  between  two  States  remote 
from  each  other,  must  it  not  commence  in  one,  terminate  in 
the  other,  and  probably  pass  through  a  third?  Commerce 
among  the  States  must,  of  necessity,  be  commerce  with  the 
States.  In  the  regulation  of  trade  with  the  Indian  tribes,  the 
action  of  the  law,  especially  when  the  constitution  was  made, 
was  chiefly  within  a  State.  The  power  of  Congress,  then,  what- 
ever it  may  be,  must  be  exercised  within  the  territorial  juris- 
diction of  the  several  States.  ,  .  . 

The  power  of  Congress,  then,  comprehends  navigation  within 
the  limits  of  every  State  in  the  Union,  so  far  as  that  navigation 
may  be,  in  any  manner,  connected  with  "commerce  with  for- 
eign nations,  or  among  the  several  States,  or  with  the  Indian 
tribes."  It  may,  of  consequence,  pass  the  jurisdictional  line  of 
New  York,  and  act  upon  the  very  waters  to  which  the  prohibi- 
tion now  under  consideration  applies. 

But  it  has  been  urged  with  great  earnestness  that,  although 
the  power  of  Congress  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  be  co-extensive  with 
the  subject  itself,  and  have  no  other  limits  than  are  prescribed 
in  the  constitution,  yet  the  States  may  severally  exercise  the 
same  power  within  their  respective  jurisdictions.  In  support 
of  this  argument,  it  is  said  that  they  possessed  it  as  an  insepar- 
able attribute  of  sovereignty  before  the  formation  of  the  con- 
stitution, and  still  retain  it,  except  so  far  as  they  have  sur- 


296  NATIONAL  SOVEREIGNTY 

rendered  it  by  that  instrument;  that  this  principle  results  from 
the  nature  of  the  government,  and  is  secured  by  the  tenth 
amendment;  that  an  afi&rmative  grant  of  power  is  not  exclu- 
sive, unless  in  its  own  nature  it  be  such  that  the  continued 
exercise  of  it  by  the  former  possessor  is  inconsistent  with  the 
grant,  and  that  this  is  not  of  that  description. 

The  appellant,  conceding  these  postulates,  except  the  last, 
contends  that  full  power  to  regulate  a  particular  subject  implies 
the  whole  power,  and  leaves  no  residuum ;  that  a  grant  of  the 
whole  is  incompatible  with  the  existence  of  a  right  in  another 
to  any  part  of  it. 

Both  parties  have  appealed  to  the  constitution,  to  legislative 
acts,  and  judicial  decisions ;  and  have  drawn  arguments  from 
all  these  sources  to  support  and  illustrate  the  propositions  they 
respectively  maintain.  .  .  . 

The  sole  question  is,  can  a  State  regulate  commerce  with 
foreign  nations  and  among  the  States  while  Congress  is  regu- 
lating it?  .  .  . 

These  acts  were  cited  at  the  bar  for  the  purpose  of  showing 
tin  opinion  in  Congress  that  the  States  possess,  concurrently 
with  the  legislature  of  the  Union,  the  power  to  regulate  com- 
merce with  foreign  nations  and  among  the  States.  Upon 
reviewing  them,  we  think  they  do  not  establish  the  proposition 
they  were  intended  to  prove.  They  show  the  opinion  that  the 
States  retain  powers  enabling  them  to  pass  the  laws  to  which 
allusion  has  been  made,  not  that  those  laws  proceed  from  the 
particular  power  which  has  been  delegated  to  Congress. 

It  has  been  contended  by  the  counsel  for  the  appellant  that, 
as  the  word  to  "regulate"  implies  in  its  nature  full  power  over 
the  thing  to  be  regulated,  it  excludes,  necessarily,  the  action  of 
all  others  that  would  perform  the  same  operation  on  the  same 
thing.  That  regulation  is  designed  for  the  entire  result,  apply- 
ing to  those  parts  which  remain  as  they  were,  as  well  as  to 
those  which  are  altered.  It  produces  a  uniform  whole,  which 
is  as  much  disturbed  and  deranged  by  changing  what  the 
regulating  power  designs  to  leave  untouched,  as  that  on  which 
it  has  operated. 


INTERPRETATION  OF  CONSTITUTION    297 

There  is  great  force  in  this  argument,  and  the  court  is  not 
satisfied  that  it  has  been  refuted. 

Since,  however,  in  exercising  the  power  of  regulating  their 
own  purely  internal  affairs,  whether  of  trading  or  pohce,  the 
States  may  sometimes  enact  laws,  the  vaHdity  of  which  depends 
on  their  interfering  with,  and  being  contrary  to,  an  act  of  Con- 
gress passed  in  pursuance  of  the  constitution,  the  court  will 
enter  upon  the  inquiry  whether  the  laws  of  New  York,  as 
expounded  by  the  highest  tribunal  of  that  State,  have,  in  their 
application  to  this  case,  come  into  collision  with  an  act  of 
Congress,  and  deprived  a  citizen  of  a  right  to  which  that  act 
entitles  him.  Should  this  collision  exist,  it  will  be  immaterial 
whether  those  laws  were  passed  in  virtue  of  a  concurrent  power 
"to  regulate  commerce  with  foreign  nations  and  among  the 
several  States,"  or,  in  virtue  of  a  power  to  regulate  their  domes- 
tic trade  and  police.  In  one  case  and  the  other,  the  acts  of  New 
York  must  yield  to  the  law  of  Congress,  and  the  decision  sus- 
taining the  privilege  they  confer,  against  a  right  given  by  a  law 
of  the  Union,  must  be  erroneous.  .  .  . 

The  questions,  then,  whether  the  conveyance  of  passengers 
be  a  part  of  the  coasting  trade,  and  whether  a  vessel  can  be 
protected  in  that  occupation  by  a  coasting  license,  are  not,  and 
cannot  be,  raised  in  this  case.  The  real  and  sole  question  seems 
to  be,  whether  a  steam  machine,  in  actual  use,  deprives  a 
vessel  of  the  privileges  conferred  by  a  license. 

In  considering  this  question,  the  first  idea  which  presents 
itself,  is  that  the  laws  of  Congress  for  the  regulation  of  com- 
merce, do  not  look  to  the  principle  by  which  vessels  are  moved. 
That  subject  is  left  entirely  to  individual  discretion;  and  in 
that  vast  and  complex  system  of  legislative  enactment  con- 
cerning it,  which  embraces  everything  which  the  legislature 
thought  it  necessary  to  notice,  there  is  not,  we  believe,  one 
word  respecting  the  peculiar  principle  by  which  vessels  are 
propelled  through  the  water,  except  what  may  be  found  in  a 
single  act,  granting  a  particular  privilege  to  steamboats.  With 
this  exception,  every  act,  either  prescribing  duties,  or  granting 
privileges,  applies  to  every  vessel,  whether  navigated  by  the  in- 


298  NATIONAL  SOVEREIGNTY 

strumentality  of  wind  or  fire,  of  sails  or  machinery.  The  whole 
weight  of  proof,  then,  is  thrown  upon  him  who  would  introduce 
a  distinction  to  which  the  words  of  the  law  give  no  countenance. 

If  a  real  difference  could  be  admitted  to  exist  between  vessels 
carrying  passengers  and  others,  it  has  akeady  been  observed 
that  there  is  no  fact  in  this  case  which  can  bring  up  that 
question.  And,  if  the  occupation  of  steam-boats  be  a  matter 
of  such  general  notoriety  that  the  court  may  be  presumed  to 
know  it,  although  not  specially  informed  by  the  record,  then 
we  deny  that  the  transportation  of  passengers  is  their  exclusive 
occupation.  It  is  a  matter  of  general  history,  that,  in  our  west- 
ern waters,  their  principal  employment  is  the  transportation 
of  merchandise;  and  all  know,  that  in  the  waters  of  the  Atlantic 
they  are  frequently  so  employed. 

But  all  inquiry  into  this  subject  seems  to  the  court  to  be  put 
completely  at  rest,  by  the  act  already  mentioned,  entitled, 
"An  act  for  the  enrolling  and  licensing  of  steamboats." 

This  act  authorizes  a  steamboat  employed,  or  intended  to  be 
employed,  only  in  a  river  or  bay  of  the  United  States,  owned 
wholly  or  in  part  by  an  alien,  resident  within  the  United  States, 
to  be  enrolled  and  licensed  as  if  the  same  belonged  to  a  citizen 
of  the  United  States. 

This  act  demonstrates  the  opinion  of  Congress,  that  steam- 
boats may  be  enrolled  and  licensed,  in  common  with  vessels 
using  sails.  They  are,  of  course,  entitled  to  the  same  privileges, 
and  can  no  more  be  restrained  from  navigating  waters,  and 
entering  ports  which  are  free  to  such  vessels,  than  if  they  were 
wafted  on  their  voyage  by  the  winds,  instead  of  being  propelled 
by  the  agency  of  fire.  The  one  element  may  be  as  legitimately 
used  as  the  other,  for  every  commercial  purpose  authorized 
by  the  laws  of  the  Union ;  and  the  act  of  a  State  inhibiting  the 
use  of  either  to  any  vessel  having  a  license  under  the  act  of 
Congress,  comes,  we  think,  in  direct  collision  with  that  act. 

As  this  decides  the  cause,  it  is  unnecessary  to  enter  into  an 
examination  of  that  part  of  the  constitution  which  empowers 
Congress  to  promote  the  progress  of  science  and  the  useful 
arts.  .  .  . 


PART  FIVE.    NATIONAL  SOVEREIGNTY 
VERSUS  STATE  RIGHTS 

CHAPTER  XXXIII 

THE   ADMISSION    OF    NEW    STATES 

The  constitutional  significance  of  the  debates  on  the  admission  of 
Missouri  arises  in  the  first  instance  from  the  attempts  made  to  attach 
to  an  enabling  act  conditions  relating  to  slavery.  In  the  session  of  1818- 
19,  Representative  Tallmadge  moved  an  amendment  providing  that  the 
future  introduction  of  slavery  and  involuntary  servitude  should  be  pro- 
hibited in  the  new  State.  The  bill  thus  amended  passed  the  House  but 
failed  in  the  Senate.  A  dead-lock  followed.  In  the  next  session,  the  pro- 
hibitory proviso  was  renewed  in  a  somewhat  different  form,  known  as 
the  "Taylor  Amendment."  The  following  extracts  touch  only  upon  the 
question  of  restriction,  not  upon  the  political  aspects  of  the  controversy. 
The  Treaty  of  1S03  was  drawn  again  into  consideration  because  the 
Territory  of  Missouri  had  been  erected  out  of  the  Louisiana  Purchase. 
The  Thomas  Amendment,  eventually  adopted  by  both  Houses  as  a  com- 
promise, appears  as  the  eighth  section  of  the  enabling  act. 

91.  Representative  Taylor  on  the  Admission  of  Missouri} 

First.  Has  Congress  power  to  require  of  Missouri  a  constitu- 
tional prohibition  against  the  further  introduction  of  slavery, 
as  a  condition  of  her  admission  into  the  Union? 

Second.  If  the  power  exist,  is  it  wise  to  exercise  it? 

Congress  has  no  power  unless  it  be  expressly  granted  by 
the  constitution,  or  necessary  to  the  execution  of  some  power 
clearly  delegated.  What,  then,  are  the  grants  made  to  Congress 
in  relation  to  the  Territories?  The  third  section  of  the  fourth 
article  declares,  that  "the  Congress  shall  have  power  to  dis- 
pose of  and  make  all  needful  rules  and  regulations  respecting 
the  territory,  or  other  property,  belonging  to  the  United 
States."  It  would  be  difficult  to  devise  a  more  comprehensive 
grant  of  power.   The  whole  subject  is  put  at  the  disposal  of 

*  February  15,  1819.  Annals  of  Congress,  15  Cong.,  2  Sess.,  1171-74 
passim. 


30O  NATION  V.  STATE 

Congress,  as  well  as  the  right  of  judging  what  regulations  are 
proper  to  be  made,  as  the  power  of  making  them  is  clearly 
granted.  Until  admitted  into  the  Union,  this  political  society 
is  a  territory;  all  the  preliminary  steps  relating  to  its  admission 
are  territorial  regulations.   Hence,  in  all  such  cases,  Congress 
has  exercised  the  power  of  determining  by  whom  the  constitu- 
tion should  be  made,  how  its  framers  should  be  elected,  when 
and  where  they  should  meet,  and  what  propositions  should  be 
submitted  to  their  decision.  After  its  formation,  the  Congress 
examine  its  provisions,  and,  if  approved,  admit  the  State  into 
the  Union,  in  pursuance  of  a  power  delegated  by  the  same 
section  of  the  constitution,  in  the  following  words:  "New 
States  may  be  admitted  by  the  Congress  into  the  Union." 
This  grant  of  power  is  evidently  alternative;  its  exercise  is  com- 
mitted to  the  sound  discretion  of  Congress;  no  injustice  is  done 
by  declining  it.   But  if  Congress  has  the  power  of  altogether 
refusing  to  admit  new  States,  much  more  has  it  the  power  of 
prescribing  such  conditions  of  admission  as  may  be  judged 
reasonable.   The  exercise  of  this  power,  until  now,  has  never 
been  questioned.    The  act  of   1802,  under  which   Ohio  was 
admitted  into  the  Union,  prescribed  the  condition  that  its 
constitution  should  not  be  repugnant  to  the  ordinance  of  1787. 
The  sixth  article  of  that  ordinance  declares,  "there  shall  be 
neither  slavery  nor  involuntary  servitude  in  the  said  territory, 
otherwise  than  in  the  punishment  of  crimes  whereof  the  party 
shall  have  been  duly  convicted."    The  same  condition  was 
imposed  by  Congress  on  the  people  of  Indiana  and  IlHnois. 
These  States  have  all  complied  with  it,  and  framed  constitu- 
tions excluding  slavery.    Missouri  Hes  in  the  same  latitude. 
Its  soil,  productions,  and  climate  are  the  same,  and  the  same 
principles  of  government  should  be  applied  to  it. 

But  it  is  said  that,  by  the  treaty  of  1803,  with  the  French 
Republic,  Congress  is  restrained  from  imposing  this  condition. 
The  third  article  is  quoted  as  containing  the  prohibition.  It  is 
in  the  following  words:  .  .  .  The  inhabitants  of  the  ceded 
territory,  when  transferred  from  the  protection  of  the  French 
Republic,  in  regard  to  the  United  States,  would  have  stood  in 


THE  ADMISSION  OF  NEW  STATES     301 

the  relation  of  aliens.  The  object  of  the  article  doubtless  was 
to  provide  for  their  admission  to  the  rights  of  citizens,  and  their 
incorporation  into  the  American  family.  The  treaty  made  no 
provision  for  the  erection  of  new  States  in  ceded  territory. 
That  was  a  question  of  national  policy,  properly  reserved  for 
the  decision  of  those  to  whom  the  constitution  had  committed 
the  power.  The  framers  of  the  treaty  well  knew  that  the  Presi- 
dent and  Senate  could  not  bind  Congress  to  admit  new  States 
into  the  Union.  ...  If  the  President  and  Senate  can,  by  treaty, 
change  the  Constitution  of  the  United  States,  and  rob  Congress 
of  a  power  clearly  delegated,  the  doctrine  may  be  true,  but 
otherwise,  it  is  false.  The  treaty,  therefore,  has  no  operation 
on  the  question  in  debate.  Its  requirements,  however,  have 
been  faithfully  fulfilled.  In  1804,  the  laws  of  the  United  States 
were  extended  to  that  territory.  The  protection  afforded  by 
the  Federal  Constitution  was  guaranteed  to  its  inhabitants. 
They  were  thus  "incorporated  in  the  Union,"  and  secured  in 
the  enjoyment  of  their  rights.  The  treaty  stipulation  being 
thus  executed,  ''as  soon  as  possible,"  it  remained  a  question 
for  the  future  determination  of  Congress,  whether  the  Govern- 
ment should  remain  territorial  or  become  that  of  an  independ- 
ent State.  In  181 1,  this  question  was  decided  in  relation  to 
that  part  of  the  territory  which  then  embraced  nearly  all  the 
population,  and  to  acquire  which,  alone,  the  treaty  had  been 
made.  A  law  was  passed  to  enable  the  people  of  the  Territory 
of  Orleans  to  form  a  constitution  and  State  government,  and  to 
provide  for  its  admission  into  the  Union.  Did  Congress  then 
doubt  its  power  to  annex  conditions  to  such  admission?  No, 
sir,  far  from  it.  The  government  of  Orleans  had  always  been 
administered  according  to  the  principles  of  the  civil  law.  The 
common  law,  so  highly  valued  in  other  parts  of  our  country, 
was  not  recognized  there.  Trial  by  jury  was  unknown  to  the 
inhabitants.  Instead  of  a  privilege,  they  considered  its  intro- 
duction an  odious  departure  from  their  ancient  administra- 
tion of  justice.  Left  to  themselves,  they  never  would  have  in- 
troduced it.  Congress,  however,  knowing  these  things,  made 
it  a  condition  of  their  admission  into  the  Union,  that  trial 


302  NATION  V.  STATE 

by  jury  should  be  secured  to  the  citizen  by  a  constitutional       ■ 
provision. 

Even  the  language  of  the  Territory  was  required  to  be  ' 

changed,  as  a  condition  of  its  admission.  The  inhabitants  were 
wholly  French  and  Spanish.  Theirs  were  the  only  languages 
generally  spoken,  or  even  understood.  But  Congress  required 
from  them  a  constitutional  provision,  that  their  legislative  and 
judicial  proceedings  should  be  conducted  in  the  English  lan- 
guage. They  were  not  left  at  liberty  to  determine  this  point  for 
themselves.  From  these  facts,  it  appears  that  Congress,  at  that 
day,  acted  from  a  conviction  that  it  possessed  the  power  of  pre- 
scribing the  conditions  of  their  admission  into  the  Union.  .  .  . 

,  .  .  The  sovereignty  of  Congress  in  relation  to  the  State, 
is  limited  by  specific  grants  —  but,  in  regard  to  the  Territories, 
it  is  unlimited.  Missouri  was  purchased  with  our  money,  and, 
until  incorporated  into  the  family  of  States,  it  may  be  sold  for 
money.  Can  it  then  be  maintained,  that  although  we  have 
the  power  to  dispose  of  the  whole  Territory,  we  have  no  right 
to  provide  against  the  further  increase  of  slavery  within  its 
limits?  That,  although  we  may  change  the  political  relations 
of  its  free  citizens  by  transferring  their  country  to  a  foreign 
power,  we  cannot  provide  for  the  gradual  abolition  of  slavery 
within  its  Kmits,  nor  estabHsh  those  civil  regulations  which 
naturally  flow  from  self-evident  truth?  No,  sir,  it  cannot;  the 
practice  of  nations  and  the  common  sense  of  mankind  have 
long  since  decided  these  questions. 

92.  Representative  McLane  on  the  Admission  of  Missouri.^ 

Mr.  Chairman,  the  great  question  involved  in  this  amend- 
ment is  neither  more  nor  less  than  this :  whether  Congress  can 
interfere  with  the  people  of  Missouri,  in  the  formation  of  their 
constitution,  to  compel  them  to  introduce  into  it  any  provision, 
touching  their  municipal  rights,  against  their  consent,  and  to 
give  up  their  right  to  change  it,  whatever  may  be  their  future 
condition,  or  that  of  their  posterity?  Every  thing  beyond  this 

^  February  7,  1820.  Atmals  oj  Congress,  16  Cong.,  i  Sess.,  1 141-60 
passim. 


THE  ADMISSION  OF  NEW  STATES     303 

is  merely  the  imposing  garb  in  which  the  power  comes  recomr 
mended  to  us.  It  is  certainly  true,  that  an  attempt  to  take 
from  this  people  the  right  of  deciding  whether  they  will  or  will 
not  tolerate  slavery  among  them,  is  less  objectionable  because 
of  its  end,  than  it  would  be  if  it  interfered  with  some  other 
local  relation  or  right  of  property;  but  the  power  to  do  this 
implies  a  power  of  much  greater  expansion.  Congress  has  no 
greater  power  over  slavery,  or  the  rights  of  the  owner,  in  any 
particular  State,  than  it  has  over  any  other  local  relation  or 
domestic  right;  and,  therefore,  a  power  to  interfere  with  one 
must  be  derived  from  a  power  to  interfere  with  all.  .  .  . 

The  people  of  Missouri  come  here  with  the  Treaty  of  1803 
in  their  hands;  they  demand  admission  into  the  Union  as  a 
matter  of  right  —  they  do  not  solicit  it  as  a  favor.  If  their 
constitution  is  republican  and  consistent  with  the  provisions 
of  that  under  which  we  are  acting,  we  have  no  alternative, 
unless  it  is  to  refuse  to  execute  our  own  contract  —  to  \dolate 
the  pHghted  faith  of  the  nation.  .  .  . 

They  are  to  be  incorporated  into  the  Union  of  the  United 
States,  and  are  to  be  admitted  as  soon  as  possible  to  the  enjoy- 
ment of  the  rights,  advantages,  and  immunities,  &c.,  and  "in 
the  mean  time  they  are  to  be  protected  in  the  free  enjoyment 
of  their  property."  This  latter  clause  shows  that  their  incor- 
poration into  the  Union  meant  more  than  a  Territorial  form 
of  government;  they  were  to  be  under  such  a  government  until 
they  could  be  incorporated  into  the  Union,  and  during  that 
time  their  property  was  not  to  be  disturbed.  It  was  only  under 
that  form  of  government  that  the  United  States  could  interfere 
with  these  rights.  Their  power  would  cease  when  it  became 
possible  to  incorporate  them  into  the  Union,  and  admit  them 
to  the  enjoyment  of  all  the  "rights,  advantages,  and  immuni- 
ties, of  citizens  of  the  United  States;"  in  virtue  of  which,  they 
would  themselves  be  authorized  to  regulate  their  own  property. 

Now,  Mr.  Chairman,  the  people  of  Missouri  cannot  be  in- 
corporated into  the  Um"on  but  as  the  people  of  a  "State," 
exercising  State  government.  It  is  a  Union  of  States,  not  of  the 
people,  much  less  of  Territories.    A  Territorial  government 


304  NATION  v.  STATE 

can  form  no  integral  part  of  a  union  of  State  governments; 
neither  can  the  people  of  a  Territory  enjoy  any  federal  rights, 
until  they  have  formed  a  State  government,  and  obtained 
admission  into  the  Union.  The  most  important  of  the  federc.1 
advantages  and  immunities  consist  in  the  right  of  being  repre- 
sented in  Congress  —  as  well  in  the  Senate  as  in  this  House  — 
the  right  of  participating  in  the  councils  by  which  they  are 
governed.  These  are  emphatically  the  "rights,  advantages, 
and  immunities,  of  citizens  of  the  United  States."  The  inhab- 
itant of  a  Territory  merely  has  no  such  rights  —  he  is  not  a 
citizen  of  the  United  States.  He  is  in  a  state  of  disability,  as  it 
respects  his  political  or  civil  rights.  Can  it  be  called  a  "right " 
to  acquire  and  hold  property,  and  have  no  voice  by  which  its 
disposition  is  to  be  regulated?  Can  it  be  called  an  advantage 
or  immunity  of  a  citizen  of  the  United  States  to  be  subjected 
to  a  Government  in  whose  deliberations  he  had  no  share  or 
agency,  beyond  the  mere  arbitrary  pleasure  of  the  governor  — 
to  be  ruled  by  a  power  irresponsible  (to  him,  at  least)  for  its 
conduct?  Sir,  the  rights,  advantages,  and  immunities,  of  citi- 
zens of  the  United  States,  and  which  are  their  proudest  boast, 
are  the  rights  of  self-government  —  first,  in  their  State  consti- 
tutions; and  secondly,  in  the  Government  of  the  Union,  in 
which  they  have  an  equal  participation.  .  .  . 

.  .  .  No  little  reliance  has  also  been  placed  by  the  honor- 
able mover,  upon  the  clause  in  the  constitution,  vesting  in 
Congress  a  power  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory,  or  other  property  belong- 
ing to  the  United  States. 

I  do  not  propose  to  enter  minutely  into  the  inquiry  whether 
the  power  of  Congress  to  establish  a  territorial  government  is 
derived  from  this  clause.  I  incline  to  the  opinion  that  it  is  not. 
The  power  here  conferred  is  a  power  to  dispose  of  and  make 
needful  rules  respecting  the  property  of  the  United  States.  It 
was  designed,  I  think,  to  authorize  the  sale  of  the  land  for  pur- 
poses of  revenue,  and  all  regulations  which  might  be  deemed 
necessary  for  its  proper  disposition;  or  to  convert  it  to  other 
public  objects  disconnected  with  sale  or  revenue;  to  retain  this 


THE  ADMISSION  OF  NEW  STATES     305 

power,  even  after  the  Territory  had  assumed  a  State  govern- 
ment, and  perhaps  to  divest  from  the  State  government  the 
right  of  taxing  it,  as  it  would  do  the  property  of  individuals. 
It  is  silent  as  to  the  people,  and  their  slaves  are  the  property  of 
their  owners,  and  not  of  the  Government.  The  right  to  govern 
a  territory  is  clearly  incident  to  the  right  of  acquiring  it.  It 
would  be  absurd  to  say  that  any  Government  might  purchase 
a  territory  with  a  population,  and  not  have  the  power  to  give 
them  laws;  but,  from  whatever  source  the  power  is  derivable, 
I  admit  it  to  be  plenary,  so  long  as  it  remains  in  a  condition 
of  territorial  dependence,  but  no  longer.  I  am  wilUng  at  any 
time  to  exercise  this  power.  I  regret  that  it  has  not  been  done 
sooner.  But,  though  Congress  can  give  laws  to  a  Territory,  it 
cannot  prescribe  them  to  a  State.  The  condition  of  the  people 
of  a  Territory  is  to  be  governed  by  others ;  of  a  State  to  govern 
themselves.  This  is  the  great  favor  we  permit  them  to  enjoy 
when  we  exalt  them  to  the  character  of  a  State.  The  instant 
we  authorize  them  to  form  their  constitution,  the  territorial 
disabilities,  and  the  powers  of  Congress  over  them,  crumble 
together  in  the  dust.  A  new  being,  and  a  new  relation  spring 
up;  the  State  authority,  derived  from  the  just  power  of  the 
people,  takes  its  place;  every  feature  of  the  territorial  authority 
becomes  effaced,  and  the  federal  powers  of  Congress,  encircling 
a  State,  commence  their  operation.  There  is  nothing  of  terri- 
torial disability  on  the  one  hand,  or  territorial  authority  on  the 
other,  which  passes  into  the  new  order  of  things;  if  they  did, 
the  State  would  be  incomplete.  .  .  . 

93.  Senator  Pinkney  on  the  Admission  of  Missouri} 

"New  States  may  be  admitted  by  the  Congress  into  this 
Union."  It  is  objected  that  the  word  ''may"  imports  power, 
not  obligation  —  a  right  to  decide  —  a  discretion  to  grant  or 
refuse. 

To  this  it  might  be  answered,  that  power  is  duty,  on  many 
occasions.  But  let  it  be  conceded  that  it  is  discretionary.  What 

*  February  15,  1820.  Annals  of  Congress,  16  Cong.,  i  Sess.,  397-99 
passim. 


3o6  NATION  v.  STATE 

consequence  follows?  A  power  to  refuse,  in  a  case  like  this, 
does  not  necessarily  involve  a  power  to  exact  terms.  You 
must  look  to  the  result,  which  is  the  declared  object  of  the 
power.  Whether  you  will  arrive  at  it  or  not  may  depend  on 
your  will;  but  you  cannot  compromise  with  the  result  intended 
and  professed. 

What,  then,  is  the  professed  result?  To  admit  a  State  into 
this  Union. 

What  is  that  Union?    A  confederation  of  States  equal  in 
sovereignty,  capable  of  every  thing  which  the  constitution  does 
not  forbid,  or  authorize  Congress  to  forbid.    It  is  an  equal 
Union  between  parties  equally  sovereign.  They  were  sovereign, 
independently  of  the  Union.  The  object  of  the  Union  was  com- 
mon protection  for  the  exercise  of  already  existing  sovereignty. 
The  parties  gave  up  a  portion  of  that  sovereignty  to  insure  the 
remainder.  As  far  as  they  gave  it  up  by  the  common  compact 
they  have  ceased  to  be  sovereign.    The  Union  provides  the 
means  of  defending  the  residue,  and  it  is  into  that  Union  that  a 
new  State  is  to  come.    By  acceding  to  it  the  new  State  is  placed 
on  the  same  footing  with  the  original  States.   It  accedes  for 
the  same  purpose;  that  is,  protection  for  its  unsurrendered 
sovereignty.  If  it  comes  in  shorn  of  its  beams  —  crippled  and 
disparaged  beyond  the  original  States  —  it  is  not  into  the 
original  Union  that  it  comes.  For  it  is  a  dififerent  sort  of  Union. 
The  first  was  Union  inter  pares:  this  is  a  Union  between  dis- 
parates, between   giants   and  a  dwarf,  between  power  and 
feebleness,   between   full  proportioned   sovereignties   and   a 
miserable  image  of  power  —  a  thing  which  that  very  Union 
has  shrunk  and  shrivelled  from  its  just  size,  instead  of  preserv- 
ing it  in  its  true  dimensions.  .  .  . 

It  is  into  "this  Union"  —  that  is,  the  Union  of  the  Federal 
Constitution  —  that  you  are  to  admit  or  refuse  to  admit. 
You  can  admit  into  no  other.  You  cannot  make  the  Union, 
as  to  the  new  State,  what  it  is  not  as  to  the  old;  for  then  it  is 
not  this  Union  that  you  open  for  the  entrance  of  a  new  party. 
If  you  make  it  enter  into  a  new  and  additional  compact,  is  it 
any  longer  the  same  Union?  .  .  . 


THE  ADMISSION  OF  NEW  STATES    307 

But  it  is  a  State  which  you  are  to  admit.  What  is  a  State  in  the 
sense  of  the  constitution?  It  is  not  a  State  in  the  general,  but  a 
State  as  you  find  in  the  constitution.  A  State,  generally,  is  a 
body  politic  or  independent  political  society  of  men.  But  the 
State  which  you  are  to  admit  must  be  more  or  less  than  this 
political  entity.  What  must  it  be?  Ask  the  constitution.  It 
shows  what  it  means  by  a  State  by  reference  to  the  parties  to 
it.  It  must  be  such  a  State  as  Massachusetts,  Virginia,  and  the 
other  members  of  the  American  confederacy  —  a  State  with 
full  sovereignty,  except  as  the  constitution  restricts  it.  .  .  . 

In  a  word,  the  whole  amount  of  the  argument  on  the  other 
side  is,  that  you  may  refuse  to  admit  a  new  State,  and  that 
therefore  if  you  admit,  you  may  prescribe  the  terms. 

The  answer  to  that  argument  is,  that  even  if  you  can  refuse, 
you  can  prescribe  no  terms  which  are  inconsistent  with  the 
act  you  are  to  do.  You  can  prescribe  no  conditions  which,  if 
carried  into  efifect,  would  make  the  new  State  less  a  sovereign 
State  than,  under  the  Union  as  it  stands,  it  would  be.  You  can 
prescribe  no  terms  which  will  make  the  compact  of  Union 
between  it  and  the  original  States  essentially  different  from 
that  compact  among  the  original  States.  .  .  . 


CHAPTER  XXXIV 

NULLIFICATION    IN    GEORGIA 

The  presence  of  the  Creek  and  Cherokee  Indians  within  the  territorial 
limits  of  Georgia,  and  occupying  some  of  the  best  lands,  was  a  source  of 
constant  irritation  to  the  people  of  that  State.  Vexed  at  the  delay  of  the 
National  Government  in  securing  the  removal  of  the  Creeks,  the  State 
authorities  took  steps  to  survey  and  occupy  their  lands.  President  Adams 
warned  them  to  desist,  intimating  that  the  Federal  Government  was  pre- 
pared to  use  force  to  defend  the  Inaian  claims.  The  Governor  returned 
a  defiant  answer  and  called  out  the  militia;  and  the  legislature  indorsed 
his  course.  Fortunately  further  trouble  was  avoided  by  a  treaty  (1827), 
which  provided  for  the  removal  of  the  Creeks.  Meantime,  the  Cherokee 
Nation  had  framed  a  constitution  as  though  to  form  a  State  within  the 
State.  The  legislature  at  once  took  steps  to  assert  its  jurisdiction  over  the 
Indian  lands.  Vigorous  resolutions  again  were  adopted  and  acts  were 
passed  incorporating  the  lands  within  five  counties.  Subsequently,  a 
Cherokee  by  the  name  of  George  Tassels  was  tried  and  convicted  of  mur- 
der by  the  State  courts.  Deeming  this  a  proper  occasion  for  asserting  the 
authority  of  the  federal  judiciary,  Chief  Justice  Marshall  sanctioned  a 
writ  of  error  citing  the  State  authorities  to  appear  before  the  Supreme 
Court.  Thereupon  the  legislature  passed  the  following  resolutions,  and 
completed  its  defiance  by  putting  Tassels  to  death.  In  the  meantime, 
the  Cherokee  Nation  had  sought  an  injunction  from  the  Supreme  Court 
to  restrain  the  State  of  Georgia  from  extending  her  jurisdiction  over  their 
lands.  In  this  purpose  they  were  thwarted  (Cherokee  Nation  v.  State  of 
Georgia).  But  when  certain  missionaries  to  the  Cherokees  were  arrested 
and  sentenced  to  imprisonment,  for  not  complying  with  the  law  which 
required  white  persons  to  take  out  a  license  to  reside  within  the  Indian 
lands,  the  case  was  taken  before  the  Supreme  Court  on  writ  of  error  and 
the  following  opinion  rendered  (Worcester  v.  Georgia).  The  authorities 
of  Georgia,  however,  would  not  recognize  the  judgment  of  the  Court,  nor 
release  Worcester  and  his  fellow  missionaries;  and  President  Jackson 
declined  to  sustain  the  Court. 

94.  Georgia  and  the  Lands  of  the  Creeks  and  Cherokees.^ 

Resolved,  That  all  the  lands  appropriated  and  unappropri- 
ated, which  lie  v^^ithin  the  conventional  limits  of  Georgia, 
belong  to  her  absolutely;  that  the  title  is  in  her;  that  the 
Indians  are  tenants  at  her  will ;  that  she  may,  at  any  time  she 

^  Resolution  of  the  Legislature  of  Georgia.  Acts  of  Georgia,  1827,  248. 


NULLIFICATION  IN  GEORGIA         309 

pleases,  determine  that  tenancy  by  taking  possession  of  the 
premises;  and  that  Georgia  has  the  right  to  extend  her  authority 
and  laws  over  the  whole  territory,  and  to  coerce  obedience  to 
them,  from  all  description  of  people,  be  they  white,  red,  or 
black,  who  reside  within  her  Hmits. 

95.  The  Legislature  of  Georgia  on  the  Case  of  George  Tassels} 

Whereas,  it  appears  by  a  communication,  made  by  his 
Excellency  the  Governor,  to  this  General  Assembly,  that  the 
Chief  Justice  of  the  Supreme  Court  of  the  United  States,  has 
sanctioned  a  writ  of  error,  and  cited  the  State  of  Georgia, 
through  her  chief  Magistrate,  to  appear  before  the  Supreme 
Court  of  the  United  States  to  defend  this  State  against  said 
writ  of  error,  at  the  instance  of  one  George  Tassels,  recently 
convicted  in  Hall  county,  Superior  Court,  of  the  crune  of 
murder.  And  whereas,  the  right  to  punish  crimes,  against  the 
peace  and  good  order  of  this  state,  in  accordance  with  existing 
laws  is  an  original  and  a  necessary  part  of  sovereignty  which 
the  State  of  Georgia  has  never  parted  with. 

Be  it  therefore  resolved  by  the  Senate,  and  House  of  Representa- 
tives of  the  State  of  Georgia,  in  General  Assembly  met.  That  they 
view  with  feelings  of  the  deepest  regret,  the  interference  by  the 
Chief  Justice  of  the  Supreme  Court  of  the  United  States,  in  the 
Administration  of  the  criminal  laws  of  this  state,  and  that  such 
an  interference  is  a  flagrant  violation  of  her  rights. 

Resolved  further,  That  his  Excellency  the  Governor,  be  and  he, 
and  every  officer  of  this  State,  is  hereby  requested  and  enjoined, 
to  disregard  any  and  every  mandate  and  process  that  has  been, 
or  shall  be  served  upon  him  or  them,  purporting  to  proceed  from 
the  Chief  Justice,  or  any  associate  Justice  of  the  Supreme  Court 
of  the  United  States,  for  the  purpose  of  arresting  the  execution 
of  any  of  the  criminal  laws  of  this  State. 

And  be  it  further  resolved,  That  his  Excellency  the  Governor, 
be  and  he  is  hereby  authorized  and  required,  with  all  the  force 
and  means,  placed  at  his  command,  by  the  Constitution  and 

1  Resolutions  of  the  Legislature,  December  22,  1830.  Acts  oj  Georgia, 
1830,  282. 


3IO  NATION  V.  STATE 

laws  of  this  State,  to  resist  and  repel,  any  and  every  invasion, 
from  whatever  quarter,  upon  the  administration  of  the  criminal 
laws  of  this  State. 

Resolved,  That  the  State  of  Georgia  will  never  so  far  compro- 
mise her  sovereignty  as  an  independent  State,  as  to  become  a 
party  to  the  case  sought  to  be  made  before  the  Supreme  Court 
of  the  United  States,  by  the  writ  in  question. 

Resolved,  That  his  Excellency  the  Governor,  be  and  he  is 
hereby,  authorized,  to  communicate  to  the  Sheriff  of  Hall 
county  by  express,  so  much  of  the  foregoing  resolutions,  and 
such  order,  as  are  necessary  to  insure  the  full  execution  of  the 
laws,  in  the  case  of  George  Tassels,  convicted  of  murder  in  Hall 
county. 

96.  The  Cherokee  Nation  v.  The  State  of  Georgia} 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  Court: 

.  .  .  Before  we  can  look  into  the  merits  of  the  case,  a  pre- 
liminary inquiry  presents  itself.  Has  this  court  jurisdiction  of 
tJie  cause?  .  .  . 

Is  the  Cherokee  nation  a  foreign  state  in  the  sense  in  which 
that  term  is  used  in  the  constitution?  .  .  . 

Though  the  Indians  are  acknowledged  to  have  an  unques- 
tionable and,  therefore,  unquestioned  right  to  the  land  they 
occupy,  until  that  right  shall  be  extinguished  by  a  voluntary 
cession  to  our  government;  yet  it  may  be  doubted  whether 
those  tribes  which  reside  within  the  acknowledged  boundaries 
of  the  United  States  can,  with  strict  accuracy,  be  denominated 
foreign  nations.  They  may,  more  correctly,  perhaps,  be  de- 
nominated domestic  dependent  nations.  They  occupy  a  terri- 
tory to  which  we  assert  a  title  independent  of  their  will,  which 
must  take  effect  in  point  of  possession  when  their  right  of  pos- 
session ceases.  Meanwhile  they  are  in  a  state  of  pupilage. 
Their  relation  to  the  United  States  resembles  that  of  a  ward 
to  his  guardian. 

They  look  to  our  government  for  protection;  rely  upon  its 
kindness  and  its  power;  appeal  to  it  for  relief  to  their  wants; 
*  Supreme  Court  of  the  United  States,  1831.    5  Peters,  i. 


NULLIFICATION  IN  GEORGIA         311 

and  address  the  President  as  their  great  father.  They  and  their 
country  are  considered  by  foreign  nations,  as  well  as  by  our- 
selves, as  being  so  completely  under  the  sovereignty  of  the 
United  States,  that  any  attempt  to  acquire  their  lands,  or  to 
form  a  political  connection  with  them,  would  be  considered 
by  all  as  an  invasion  of  our  territory,  and  an  act  of  hostil- 

These  considerations  go  far  to  support  the  opinion  that  the 
framers  of  our  constitution  had  not  the  Indian  tribes  in  view, 
when  they  opened  the  courts  of  the  Union  to  controversies 
between  a  State  or  the  citizens  thereof  and  foreign  states.  .  .  . 

Be  this  as  it  may,  the  peculiar  relations  between  the  United 
States  and  the  Indians  occupying  our  territory  are  such,  that  we 
should  feel  much  difficulty  in  considering  them  as  designated 
by  the  term  foreign  state,  were  there  no  other  part  of  the  con- 
stitution which  might  shed  light  on  the  meaning  of  these  words. 
But  we  think  that  in  construing  them,  considerable  aid  is 
furnished  by  that  clause  in  the  8th  section  of  the  ist  article, 
which  empowers  Congress  to  "regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with  the  Indian 
tribes." 

In  this  clause  they  are  as  clearly  contradistinguished  by  a 
name  appropriate  to  themselves,  from  foreign  nations,  as  from 
the  several  States  composing  the  Union.  They  are  designated 
by  a  distinct  appellation;  and  as  this  appellation  can  be  applied 
to  neither  of  the  others,  neither  can  the  appellation  distinguish- 
ing either  of  the  others  be  in  fair  construction  applied  to  them. 
The  objects,  to  which  the  power  of  regulating  commerce  might 
be  directed,  are  divided  into  three  distinct  classes  —  foreign 
nations,  the  several  States,  and  Indian  tribes.  When  forming 
this  article,  the  convention  considered  them  as  entirely  distinct. 
We  cannot  assume  that  the  distinction  was  lost  in  framing  a 
subsequent  article,  unless  there  be  something  in  its  language 
to  authorize  the  assumption.  .  .  . 

The  court  has  bestowed  its  best  attention  on  this  question, 
and,  after  mature  deliberation,  the  majority  is  of  opinion  that 
an  Indian  tribe  or  nation  within  the  United  States  is  not  a  for- 


312  NATION  V.  STATE 

eign  state,  in  the  sense  of  the  constitution,  and  cannot  maintain 
an  action  in  the  courts  of  the  United  States. 

97.  Worcester  v.  The  State  of  Georgia} 

Mr.  Chief  Justice  Marshall  deHvered  the  opinion  of  the  Court". 

The  treaties  and  laws  of  the  United  States  contemplate  the 
Indian  territory  as  completely  separated  from  that  of  the 
States;  and  provide  that  all  intercourse  with  them  shall  be 
carried  on  exclusively  by  the  government  of  the  Union. 

Is  this  the  rightful  exercise  of  power,  or  is  it  usurpation? 

While  these  States  were  colonies,  this  power,  in  its  utmost 
extent,  was  admitted  to  reside  in  the  crown.  When  our  revolu- 
tionary struggle  commenced.  Congress  was  composed  of  an 
assemblage  of  deputies  acting  under  specific  powers  granted 
by  the  legislatures,  or  conventions  of  the  several  colonies.  It 
was  a  great  popular  movement,  not  perfectly  organized;  nor 
were  the  respective  powers  of  those  who  were  intrusted  with 
the  management  of  affairs  accurately  defined.  The  necessities 
of  our  situation  produced  a  general  conviction  that  those 
measures  which  concerned  all  must  be  transacted  by  a  body  in 
which  the  representatives  of  all  were  assembled,  and  which 
could  command  the  confidence  of  all :  Congress,  therefore,  was 
considered  as  invested  with  all  the  powers  of  war  and  peace, 
and  Congress  dissolved  our  connection  with  the  mother  coun- 
try, and  declared  these  united  colonies  to  be  independent 
States.  Without  any  written  definition  of  powers,  they  em- 
ployed diplomatic  agents  to  represent  the  United  States  at  the 
several  courts  of  Europe;  offered  to  negotiate  treaties  with 
them,  and  did  actually  negotiate  treaties  with  France.  From 
the  same  necessity,  and  on  the  same  principles,  Congress 
assumed  the  management  of  Indian  affairs;  first  in  the  name 
of  these  united  colonies;  and,  afterwards,  in  the  name  of  the 
United  States.  Early  attempts  were  made  at  negotiation,  and 
to  regulate  trade  with  them.  These  not  proving  successful, 
war  was  carried  on  under  the  direction,  and  with  the  forces  of 
the  United  States,  and  the  efforts  to  make  peace,  by  treaty, 
^  Supreme  Court  of  the  United  States,  1832.  6  Peters,  515. 


NULLIFICATION  IN  GEORGL\         313 

were  earnest  and  incessant.  The  confederation  found  Congress 
in  the  exercise  of  the  same  powers  of  peace  and  war,  in  our  rela- 
tions with  Indian  nations,  as  with  those  of  Europe. 

Such  was  the  state  of  things  when  the  confederation  was 
adopted.  That  instrument  surrendered  the  powers  of  peace  and 
war  to  Congress,  and  prohibited  them  to  the  States,  respectively, 
unless  a  State  be  actually  invaded,  *'or  shall  have  received  cer- 
tain advice  of  a  resolution  being  formed  by  some  nation  of 
Indians  to  invade  such  State,  and  the  danger  is  so  imminent 
as  not  to  admit  of  delay  till  the  United  States  in  Congress 
assembled  can  be  consulted."  This  instrument  also  gave  the 
United  States  in  Congress  assembled  the  sole  and  exclusive 
right  of  ''regulating  the  trade  and  managing  all  the  affairs  with 
the  Indians,  not  members  of  any  of  the  States:  provided,  that 
the  legislative  power  of  any  State  within  its  own  limits  be  not 
infringed  or  violated." 

The  ambiguous  phrases  which  follow  the  grant  of  power  to 
the  United  States  were  so  construed  by  the  States  of  North 
Carolina  and  Georgia  as  to  annul  the  power  itself.  .  .  .  The 
correct  exposition  of  this  article  is  rendered  unnecessary  by 
the  adoption  of  our  existing  constitution.  That  instrument 
confers  on  Congress  the  powers  of  war  and  peace ;  of  making 
treaties,  and  of  regulating  commerce  with  foreign  nations,  and 
among  the  several  States,  and  with  the  Indian  tribes.  These 
powers  comprehend  all  that  is  required  for  the  regulation  of  our 
intercourse  with  the  Indians.  They  are  not  limited  by  any 
restrictions  on  their  free  actions.  The  shackles  imposed  on  this 
power,  in  the  confederation,  are  discarded. 

The  Indian  nations  had  always  been  considered  as  distinct, 
independent  poHtical  communities,  retaining  their  original 
natural  rights,  as  the  undisputed  possessors  of  the  soil,  from 
time  immemorial,  with  the  single  exception  of  that  imposed  by 
irresistible  power,  which  excluded  them  from  intercourse  with 
any  other  European  potentate  than  the  first  discoverer  of  the 
coast  of  the  particular  region  claimed :  and  this  was  a  restriction 
which  those  European  potentates  imposed  on  themselves,  as 
well  as  on  the  Indians.  The  very  term  ''nation,"  so  generally 


314  NATION  V.  STATE 

applied  to  them,  means  "a  people  distinct  from  others."  The 
constitution,  by  declaring  treaties  already  made,  as  well  as 
those  to  be  made,  to  be  the  supreme  law  of  the  land,  has 
adopted  and  sanctioned  the  previous  treaties  with  the  Indian 
nations,  and  consequently  admits  their  rank  among  those  pow- 
ers who  are  capable  of  making  treaties.  The  words  "treaty" 
and  "nation"  are  words  of  our  own  language,  selected  in  our 
diplomatic  and  legislative  proceedings,  by  ourselves,  having 
each  a  definite  and  well-understood  meaning.  We  have  applied 
them  to  Indians,  as  we  have  applied  them  to  the  other  nations 
of  the  earth.  They  are  applied  to  all  in  the  same  sense. 

Georgia,  herself,  has  furnished  conclusive  evidence  that  her 
former  opinions  on  this  subject  concurred  with  those  enter- 
tained by  her  sister  States,  and  by  the  government  of  the 
United  States.  Various  acts  of  her  legislature  have  been  cited 
in  the  argument,  including  the  contract  of  cession  made  in  the 
year  1802,  all  tending  to  prove  her  acquiescence  in  the  universal 
conviction  that  the  Indian  nations  possessed  a  full  right  to  the 
lands  they  occupied,  until  that  right  should  be  extinguished 
by  the  United  States,  with  their  consent ;  that  their  territory 
was  separated  from  that  of  any  State  within  whose  chartered 
limits  they  might  reside,  by  a  boundary  line,  established  by 
treaties;  that,  within  their  boundary,  they  possessed  rights 
with  which  no  State  could  interfere;  and  that  the  whole  power 
of  regulating  the  intercourse  with  them,  was  vested  in  the 
United  States.  .  .  . 

The  Cherokee  nation,  then,  is  a  distinct  community,  occupy- 
ing its  own  territory,  with  boundaries  accurately  described,  in 
which  the  laws  of  Georgia  can  have  no  force,  and  which  the 
citizens  of  Georgia  have  no  right  to  enter,  but  with  the  assent 
of  the  Cherokees  themselves,  or  in  conformity  with  treaties 
and  with  the  acts  of  Congress.  The  whole  intercourse  between 
the  United  States  and  this  nation,  is,  by  our  constitution  and 
laws,  vested  in  the  government  of  the  United  States. 

The  act  of  the  State  of  Georgia,  under  which  the  plaintiff  in 
error  was  prosecuted,  is  consequently  void,  and  the  judgment 
a  nullity.  Can  this  court  revise  and  reverse  it? 


NULLIFICATION  IN  GEORGIA         315 

If  the  objection  to  the  system  of  legislation,  lately  adopted  by 
the  legislature  of  Georgia,  in  relation  to  the  Cherokee  nation, 
was  confined  to  its  extra-territorial  operation,  the  objection, 
though  complete,  so  far  as  respected  mere  right,  would  give  this 
court  no  power  over  the  subject.  But  it  goes  much  further.  If 
the  review  which  has  been  taken  be  correct,  and  we  think  it  is, 
the  acts  of  Georgia  are  repugnant  to  the  constitution,  laws,  and 
treaties  of  the  United  States. 

They  interfere  forcibly  with  the  relations  established  between 
the  United  States  and  the  Cherokee  nation,  the  regulation  of 
which,  according  to  the  settled  principles  of  our  constitution, 
are  committed  exclusively  to  the  government  of  the  Union. 

They  are  in  direct  hostility  with  treaties,  repeated  in  a 
succession  of  years,  which  mark  out  the  boundary  that  sepa- 
rates the  Cherokee  country  from  Georgia,  guarantee  to  them 
all  the  land  within  their  boundary,  solemnly  pledge  the  faith 
of  the  United  States  to  restrain  their  citizens  from  trespassing 
on  it,  and  recognize  the  pre-existing  power  of  the  nation  to 
govern  itself. 

They  are  in  equal  hostility  with  the  acts  of  Congress  for  regu- 
lating this  intercourse,  and  giving  effect  to  the  treaties. 

The  forcible  seizure  and  abduction  of  the  plaintiff  in  error, 
who  was  residing  in  the  nation  with  its  permission,  and  by 
authority  of  the  President  of  the  United  States,  is  also  a  viola- 
tion of  the  acts  which  authorize  the  chief  magistrate  to  exercise 
this  authority. 

Will  these  powerful  considerations  avail  the  plaintiff  in  error? 
We  think  they  will.  He  was  seized,  and  forcibly  carried  away, 
while  under  guardianship  of  treaties  guaranteeing  the  country 
in  which  he  resided,  and  taking  it  under  the  protection  of  the 
United  States.  He  was  seized  while  performing,  under  the 
sanction  of  the  chief  magistrate  of  the  Union,  those  duties 
which  the  humane  policy  adopted  by  Congress  had  recom- 
mended. He  was  apprehended,  tried,  and  condemned,  under 
color  of  a  law  which  has  been  shown  to  be  repugnant  to  the 
constitution,  laws,  and  treaties  of  the  United  States.  Had  a 
judgment,  liable  to  the  same  objections,  been  rendered  for 


3i6  NATION  V.  STATE 

property,  none  would  question  the  jurisdiction  of  this  court. 
It  cannot  be  less  clear  when  the  judgment  affects  personal  lib- 
erty, and  inflicts  disgraceful  punishment,  if  punishment  could 
disgrace  when  inflicted  on  innocence.  The  plaintiff  in  error  is 
not  less  interested  in  the  operation  of  this  unconstitutional  law 
than  if  it  affected  his  property.  He  is  not  less  entitled  to  the 
protection  of  the  constitution,  laws,  and  treaties  of  his  country. 

This  point  has  been  elaborately  argued  and,  after  dehberate 
consideration,  decided,  in  the  case  of  Cohens  v.  The  Common- 
wealth of  Virginia,  6  Wheat.,  264. 

It  is  the  opinion  of  this  court  that  the  judgment  of  the 
superior  court  for  the  county  of  Gwinnett,  in  the  State  of 
Georgia,  condemning  Samuel  A.  Worcester  to  hard  labor,  in  the 
penitentiary  of  the  State  of  Georgia,  for  four  years,  was  pro- 
nounced by  that  court  under  color  of  a  law  which  is  void,  as 
being  repugnant  to  the  constitution,  treaties,  and  laws  of  the 
United  States,  and  ought,  therefore,  to  be  reversed  and  an- 
nulled. 


CHAPTER  XXXV 

THE   DOCTRINE    OF    NULLIFICATION 

The  theory  of  nullification  associated  with  the  name  of  John  C.  Cal- 
houn was  first  set  forth  in  a  report  which  he  drafted  for  a  committee  of 
the  legislature  of  South  Carolina.  Adopted  by  the  legislature  with  some 
modifications  on  December  19,  1828,  this  report  became  widely  known  as 
the  "South  Carolina  Exposition."  Between  this  date  and  1832,  Calhoun 
elaborated  his  doctrine  in  various  letters  and  addresses.  It  was  Calhoun 
who  gave  final  form  to  the  State-Rights  doctrine.  In  contrast  to  the  cur- 
rent view,  he  held  that  sovereignty  could  not  be  divided;  that  the  States 
were  originally  sovereign ;  and  that  the  general  Government  was  merely 
the  agent  of  the  sovereign  States. 

98.  The  South  Carolina  Exposition} 

...  In  order  to  have  a  full  and  clear  conception  of  our 
institutions,  it  will  be  proper  to  remark  that  there  is,  in  our 
system,  a  striking  distinction  between  Government  and  Sover- 
eignty. The  separate  governments  of  the  several  States  are 
vested  in  their  Legislative,  Executive,  and  Judicial  Depart- 
ments ;  while  the  sovereignty  resides  in  the  people  of  the  States 
respectively.  The  powers  of  the  General  Government  are  also 
vested  in  its  Legislative,  Executive,  and  Judicial  Departments, 
while  the  sovereignty  resides  in  the  people  of  the  several  States 
who  created  it.  But,  by  an  express  provision  of  the  Constitu- 
tion, it  may  be  amended  or  changed  by  three  fourths  of  the 
States;  and  thus  each  State,  by  assenting  to  the  Constitution 
with  this  provision,  has  modified  its  original  right  as  a  sover- 
eign, of  making  its  individual  consent  necessary  to  any  change 
in  its  poHtical  condition;  and,  by  becoming  a  member  of  the 
Union,  has  placed  this  important  power  in  the  hands  of  three 
fourths  of  the  States,  —  in  whom  the  highest  power  known 
to  the  Constitution  actually  resides.  Not  the  least  portion  of 
this  high  sovereign  authority  resides  in  Congress,  or  any  of  the 

^  Works  of  John  C.  Calhoun  (Cralle  ed.),  vi,  36-51  passim.  Adopted 
by  the  Legislature  of  South  Carolina  in  December,  1828. 


3i8  NATION  V.   STATE 

departments  of  the  General  Government.  They  are  but  the 
creatures  of  the  Constitution,  and  are  appointed  but  to  execute 
its  provisions;  and,  therefore,  any  attempt  by  all,  or  any  of 
these  departments,  to  exercise  any  power  which,  in  its  conse- 
quences, may  alter  the  nature  of  the  instrument,  or  change 
the  condition  of  the  parties  to  it,  would  be  an  act  of  usurpa- 
tion. .  .  . 

If  we  look  to  the  history  and  practical  operation  of  the  sys- 
tem, we  shall  find,  on  the  side  of  the  States,  no  means  resorted 
to  in  order  to  protect  their  reserved  rights  against  the  encroach- 
ments of  the  General  Government;  while  the  latter  has,  from 
the  beginning,  adopted  the  most  efficient  to  prevent  the  States 
from  encroaching  on  those  delegated  to  them.  The  25th  section 
of  the  Judiciary  Act,  passed  in  1789,  —  immediately  after  the 
Constitution  went  into  operation,  —  provides  for  an  appeal 
from  the  State  courts  to  the  Supreme  Court  of  the  United 
States  in  all  cases,  in  the  decision  of  which,  the  construction  of 
the  Constitution,  —  the  laws  of  Congress,  or  treaties  of  the 
United  States  may  be  involved;  thus  gixdng  to  that  high  tri- 
bunal the  right  of  final  interpretation,  and  the  power,  in  reaUty, 
of  nullifying  the  acts  of  the  State  Legislatures  whenever,  in 
their  opinion,  they  may  conflict  ydth  the  powers  delegated  to 
the  General  Government.  A  more  ample  and  complete  protec- 
tion against  the  encroachments  of  the  governments  of  the 
several  States  cannot  be  imagined ;  and  to  this  extent  the  power 
may  be  considered  as  indispensable  and  constitutional.   But, 
by  a  strange  misconception  of  the  nature  of  our  system,  — 
and,  in  fact,  of  the  nature  of  government,  —  it  has  been  re- 
garded as  the  ultimate  power,  not  only  of  protecting  the  Gen- 
eral Government  against  the  encroachments  of  the  govern- 
ments of  the  States,  but  also  of  the  encroachments  of  the  former 
on  the  latter ;  —  and  as  being,  in  fact,  the  only  means  provided 
by  the  Constitution  of  confining  all  the  powers  of  the  system 
to  their  proper  constitutional  spheres;  and,  consequently,  of 
determining  the  limits  assigned  to  each.   Such  a  construction 
of  its  powers  would,  in  fact,  raise  one  of  the  departments  of  the 
General  Government  above  the  p>artieswho  created  the  con- 


THE  DOCTRINE  OF  NULLIFICATION    319 

stitutional  compact,  and  virtually  invest  it  with  the  authority 
to  alter,  at  its  pleasure,  the  relative  powers  of  the  General  and 
State  Governments,  on  the  distribution  of  which,  as  established 
by  the  Constitution,  our  whole  system  rests;  —  and  which,  by 
an  express  provision  of  the  instrument,  can  only  be  altered  by 
three  fourths  of  the  States,  as  has  already  been  shown.  .  .  . 

As  a  substitute  for  the  rightful  remedy,  in  the  last  resort, 
against  the  encroachments  of  the  General  Government  on  the 
reserved  powers,  resort  has  been  had  to  a  rigid  construction  of 
the  Constitution.  A  system  like  ours,  of  divided  powers,  must 
necessarily  give  great  importance  to  a  proper  system  of  con- 
struction; but  it  is  perfectly  clear  that  no  rule  of  construction, 
however  perfect,  can,  in  fact,  prescribe  bounds  to  the  operation 
of  power.  ...  In  fact,  the  power  of  construction,  on  which  its 
advocates  relied  to  preserve  the  rights  of  the  States,  has  been 
wielded,  as  it  ever  must  be,  if  not  checked,  to  destroy  those 
rights.  If  the  minority  has  a  right  to  prescribe  its  rule  of  con- 
struction, a  majority,  on  its  part,  will  exercise  a  similar  right ; 
but  with  this  striking  difference,  —  that  the  right  of  the  former 
will  be  a  mere  nullity  against  that  of  the  latter.  But  that  pro- 
tection, which  the  minor  interests  must  ever  fail  to  find  in  any 
technical  system  of  construction,  may  be  found  in  the  reserved 
rights  of  the  States  themselves,  if  they  be  properly  called  into 
action;  and  there  only  will  they  ever  be  found  of  sufficient 
efficacy.  ... 

If  it  be  conceded,  as  it  must  be  by  every  one  who  is  the  least 
conversant  with  our  institutions,  that  the  sovereign  powers 
delegated  are  divided  between  the  General  and  State  Govern- 
ments, and  that  the  latter  hold  their  portion  by  the  same  tenure 
as  the  former,  it  would  seem  impossible  to  deny  to  the  States 
the  right  of  deciding  on  the  infractions  of  their  powers,  and  the 
proper  remedy  to  be  applied  for  their  correction.  The  right 
of  judging,  in  such  cases,  is  an  essential  attribute  of  sovereignty, 
—  of  which  the  States  cannot  be  divested  without  losing  their 
sovereignty  itself,  —  and  being  reduced  to  a  subordinate  cor- 
porate condition.  In  fact,  to  divide  power,  and  to  give  to  one 
of  the  parties  the  exclusive  right  of  judging  of  the  portion 


320  NATION  V.  STATE 

allotted  to  each,  is,  in  reality,  not  to  divide  it  at  all;  and  to 
reserve  such  exclusive  right  to  the  General  Government  (it 
matters  not  by  what  department  to  be  exercised),  is  to  convert 
it,  in  fact,  into  a  great  consolidated  government,  with  unlim- 
ited powers,  and  to  divest  the  States,  in  reahty,  of  all  their 
rights.  It  is  impossible  to  understand  the  force  of  terms,  and 
to  deny  so  plain  a  conclusion.  The  opposite  opinion  can  be 
embraced  only  on  hasty  and  imperfect  views  of  the  relation 
existing  between  the  States  and  the  General  Government.  But 
the  existence  of  the  right  of  judging  of  their  powers,  so  clearly 
established  from  the  sovereignty  of  States,  as  clearly  implies 
a  veto  or  control,  within  its  Hmits,  on  the  action  of  the  General 
Government,  on  contested  points  of  authority;  and  this  very 
control  is  the  remedy  which  the  Constitution  has  provided  to 
prevent  the  encroachments  of  the  General  Government  on  the 
reserved  rights  of  the  States;  and  by  which  the  distribution  of 
power,  between  the  General  and  State  Governments,  may  be 
preserved  for  ever  inviolable,  on  the  basis  established  by  the 
Constitution.  It  is  thus  effectual  protection  is  afforded  to  the 
minority,  against  the  oppression  of  the  majority.  .  .  . 

.  .  .  How  is  the  remedy  to  be  applied  by  the  States?  In 
this  inquiry  a  question  may  be  made,  —  whether  a  State  can 
interpose  its  sovereignty  through  the  ordinary  Legislature,  but 
which  the  committee  do  not  deem  it  necessary  to  investigate. 
.  .  .  Whatever  doubts  may  be  raised  as  to  the  question,  — 
whether  the  respective  legislatures  fully  represent  the  sover- 
eignty of  the  States  for  this  high  purpose,  there  can  be  none 
as  to  the  fact  that  a  Convention  fully  represents  them  for  all 
purposes  whatever.  Its  authority,  therefore,  must  remoye 
every  objection  as  to  form,  and  leave  the  question  on  the  single 
point  of  the  right  of  the  States  to  interpose  at  all.  When 
convened,  it  will  belong  to  the  Convention  itself  to  determine, 
authoritatively,  whether  the  acts  of  which  we  complain  be 
unconstitutional;  and,  if  so,  whether  they  constitute  a  violation 
so  deliberate,  palpable,  and  dangerous,  as  to  justify  the  inter- 
position of  the  State  to  protect  its  rights.  If  this  question  be 
decided  in  the  affirmative,  the  Convention  will  then  determine 


THE  DOCTRINE  OF  NULLIFICATION    321 

in  what  manner  they  ought  to  be  declared  null  and  void  within 
the  limits  of  the  State;  which  solemn  declaration,  based  on  her 
rights  as  a  member  of  the  Union,  would  be  obHgatory,  not  only 
on  her  own  citizens,  but  on  the  General  Government  itself; 
and  thus  place  the  violated  rights  of  the  State  under  the  shield 
of  the  Constitution.  .  .  . 

...  As  high  as  this  right  of  interposition  on  the  part  of  a 
State  may  be  regarded  in  relation  to  the  General  Government, 
the  constitutional  compact  provides  a  remedy  against  its  abuse. 
There  is  a  higher  power,  —  placed  above  all  by  the  consent  of 
all,  —  the  creating  and  preserving  power  of  the  system,  —  to 
be  exercised  by  three  fourths  of  the  States,  —  and  which,  under 
the  character  of  the  amending  power,  can  modify  the  whole 
system  at  pleasure,  —  and  to  the  acts  of  which  none  can  object. 
Admit,  then,  the  power  in  question  to  belong  to  the  States,  — 
and  admit  its  hability  to  abuse,  —  and  what  are  the  utmost 
consequences,  but  to  create  a  presumption  against  the  constitu- 
tionahty  of  the  power  exercised  by  the  General  Government, 
—  which,  if  it  be  well  founded,  must  compel  them  to  abandon 
it;  —  or,  if  not,  to  remove  the  difficulty  by  obtaining  the  con- 
tested power  in  the  form  of  an  amendment  to  the  Constitution. 
If,  on  an  appeal  for  this  purpose,  the  decision  be  favorable  to 
the  General  Government,  a  disputed  power  will  be  converted 
into  an  expressly  granted  power; — but,  on  the  other  hand, 
if  it  be  adverse,  the  refusal  to  grant  will  be  tantamount  to  an 
inhibition  of  its  exercise:  and  thus,  in  either  case,  the  contro- 
versy will  be  determined.  And  ought  not  a  sovereign  State, 
as  a  party  to  the  constitutional  compact,  and  as  the  guardian 
of  her  citizens  and  her  peculiar  interests,  to  have  the  power  in 
question?  Without  it,  the  amending  power  must  become  obso- 
lete, and  the  Constitution,  through  the  exercise  of  construction, 
in  the  end  utterly  subverted.  Let  us  examine  the  case.  The 
disease  is,  that  a  majority  of  the  States,  through  the  General 
Government,  by  construction,  usurp  powers  not  delegated, 
and  by  their  exercise,  increase  their  wealth  and  authority  at  the 
expense  of  the  minority.  How  absurd,  then,  to  expect  the  in- 
jured States  to  attempt  a  remedy  by  proposing  an  amendment 


322  NATION  V.  STATE 

to  be  ratified  by  three  fourths  of  the  States,  when,  by  supposi- 
tion, there  is  a  majority  opposed  to  them!  Nor  would  it  be  less 
absurd  to  expect  the  General  Government  to  propose  amend- 
ments, unless  compelled  to  that  course  by  the  acts  of  a  State. 
The  Government  can  have  no  inducement.  It  has  a  more  sum- 
mary mode,  —  the  assumption  of  power  by  construction.  The 
consequence  is  clear:  —  neither  would  resort  to  the  amend- 
ing power;  —  the  one,  because  it  would  be  useless,  —  and  the 
other,  because  it  could  effect  its  purpose  without  it;  —  and 
thus  the  highest  power  known  to  the  Constitution,  —  on  the 
salutary  influence  of  which,  ou  the  operations  of  our  political 
institutions,  so  much  was  calculated,  would  become,  in  prac- 
tice, obsolete,  as  stated ;  and  in  lieu  of  it,  the  will  of  the  majority, 
under  the  agency  of  construction,  would  be  substituted,  with 
unlimited  and  supreme  power.  On  the  contrary,  giving  the 
right  to  a  State  to  compel  the  General  Government  to  abandon 
its  pretensions  to  a  constructive  power,  or  to  obtain  a  positive 
grant  of  it,  by  an  amendment  to  the  Constitution,  would  call 
efficiently  into  action,  on  all  important  disputed  questions,  this 
highest  power  of  the  system ,  —  to  whose  controlling  authority 
no  one  can  object,  and  under  whose  operation  all  controver- 
sies between  the  States  and  General  Gk)vemment  would  be 
adjusted,  and  the  Constitution  gradually  acquire  all  the  per- 
fection of  which  it  is  susceptible.  It  is  thus  that  the  creating 
becomes  the  preserving  power;  and  we  may  rest  assured  it  is 
no  less  true  in  poUtics  than  in  theology,  that  the  power  which 
creates  can  alone  preserve,  —  and  that  preservation  is  per- 
petual creation.  Such  will  be  the  operation  and  effect  of  State 
interposition.  .  .  . 

99.  Report  for  a  Committee  of  the  South  Carolina  Legislature.^ 

The  General  Government,  properly  considered,  is  but  a 
great  political  association,  in  which  the  States,  as  parties  to  the 
contract  that  formed  it,  are  partners,  and  the  Government  the 
direction.  Among  the  leading  and  essential  provisions  of  the 
contract  are,  —  that  no  powers  should  be  granted  to  the  asso- 
»  November,  1831.  Works  of  Calhoun  (Cralleed.),  vi,  111-12. 


THE  DOCTRINE  OF  NULLIFICATION    323 

elation,  or  exercised  by  the  direction,  except  such  as  have  been 
assented  to  by  three  fourths  of  all  the  partners,  and  that  the 
compact,  forming  the  association,  shall  not  be  changed  or  al- 
tered but  by  a  proportional  number  of  the  partners;  but  that 
the  powers  granted,  with  a  few  specified  exceptions,  should  be 
exercised  by  a  majority  of  the  direction,  appointed  by  a 
majority  of  the  partners;  thus  subjecting  the  two  to  a  very 
different  control;  in  the  former,  the  will  of  the  majority  pre- 
vails, —  while  in  the  latter,  the  consent  of  three  fourths  of  the 
partners  is  required. 

Thus  organized,  it  is  impossible  not  to  see,  that  the  interest 
which  controls  in  the  direction,  must  come  into  conflict  with 
that  which  prevails  with  the  partners  or  stockholders;  and  that 
unless  there  be,  on  the  part  of  the  latter,  a  right  to  compel  th- 
former  to  submit  all  questions  touching  the  compact  of  assc 
ciation,  to  the  stockholders  themselves,  according  to  the  pre 
vision  of  the  contract,  the  interests  of  the  direction  wouk 
absorb  those  of  the  stockholders,  —  the  By-Laws  would  preva?.. 
over  the  Charter;  —  and  we  accordingly  find,  in  all  private 
associations,  such  a  right  universally  recognized,  as  essential 
to  protect  the  rights  and  interests  of  the  stockholders,  against 
those  of  the  direction.   But  as  essential  as  this  is  in  all  such 
associations,  it  is  far  more  so  in  our  great  Political  Joint-Stock 
Association,  —  comprehending,  as  it  does,  powers  that  maj 
touch  the  labor  and  capital  of  the  wl\ole  community ;  and  when 
of  course,  the  motives  to  encroachment  are  infinitely  strongs 
than  they  can  be  in  any  case  of  private  association.  .  .  . 

100.  The  Fort  Hill  Letter  on  State  Interposition} 

.  .  .  From  the  beginning,  and  in  all  the  changes  of  politictiJ 
existence  through  which  we  have  passed,  the  people  of  ths 
United  States  have  been  united  as  forming  political  communi- 
ties, and  not  as  individuals.  Even  in  the  first  stage  of  existence, 
they  formed  distinct  colonies,  independent  of  each  other,  and 
politically  united  only  through  the  British  crown.    In  theif 

^  Calhoun  to  Governor  Hamilton,  August  28, 1832  Wa ':s  o_  CalftOH^ 
/CraM  ed.),  vi,  147-69  passim. 


324  NATION  V.  STATE 

first  imperfect  union,  for  the  purpose  of  resisting  the  encroach- 
ments of  the  mother  country,  they  united  as  distinct  pohtical 
communities ;  and  passing  from  their  colonial  condition,  in  the 
act  announcing  their  independence  to  the  world,  they  declared 
themselves,  by  name  and  enumeration,  free  and  independent 
States.  In  that  character,  they  formed  the  old  confederation; 
and,  when  it  was  proposed  to  supersede  the  articles  of  the 
confederation  by  the  present  Constitution,  they  met  in  con- 
vention as  States,  acted  and  voted  as  States;  and  the  Consti- 
tution, when  formed,  was  submitted  for  ratification  to  the 
people  of  the  several  States;  it  was  ratified  by  them  as  States, 
each  State  for  itself;  each  by  its  ratification  binding  its  own 
citizens :  the  parts  thus  separately  binding  themselves,  and  not 
the  whole  the  parts;  to  which,  if  it  be  added,  that  it  is  declared 
in  the  preamble  of  the  Constitution  to  be  ordained  by  the  peo- 
ple of  the  United  States,  and  in  the  article  of  ratification, 
when  ratified,  it  is  declared  'Ho  he  binding  between  the  States  so 
ratifying,'^  the  conclusion  is  inevitable,  that  the  Constitution 
is  the  work  of  the  people  of  the  States,  considered  as  separate 
and  independent  political  communities;  that  they  are  its 
authors  —  their  power  created  it,  their  voice  clothed  it  with 
authority;  that  the  government  formed  is,  in  reality,  their 
agent;  and  that  the  Union,  of  which  the  Constitution  is  the 
bond,  is  a  union  of  States,  and  not  of  individuals.  .  .  . 

First,  they  [Secession  and  Nullification]  are  wholly  dissimilar 
in  their  nature.  One  has  reference  to  the  parties  themselves,  and 
the  other  to  their  agents.  Secession  is  a  witMrawalfrom  the  Union; 
a  separation  from  partners,  and,  as  far  as  depends  on  the  mem- 
ber withdrawing,  a  dissolution  of  the  partnership.  It  presup- 
poses an  association;  a  union  of  several  States  or  individuals 
for  a  common  object.  Wherever  these  exist,  secession  may;  and 
where  they  do  not,  it  cannot.  Nullification,  on  the  contrary, 
presupposes  the  relation  of  principal  and  agent:  the  one  granting 
a  power  to  be  executed,  —  the  other,  appointed  by  him  with 
authority  to  execute  it;  and  is  simply  a  declaration  on  the  part 
of  the  principal,  made  in  due  form,  that  an  act  of  the  agent  tran- 
scending his  power  is  null  and  void.  It  is  a  right  belonging  exclu- 


THE  DOCTRINE  OF  NULLIFICATION    325 

sively  to  the  relation  between  principal  and  agent,  to  be  found 
wherever  it  exists,  and  in  all  its  forms,  between  several,  or  an 
association  of  principals,  and  their  joint  agents,  as  well  as 
between  a  single  principal  and  his  agent. 

The  difference  in  their  object  is  no  less  striking  than  in  their 
nature.  The  object  of  secession  is  to  free  the  withdrawing 
member  from  the  obligation  of  the  association  or  union,  and 
is  applicable  to  cases  where  the  object  of  the  association  or 
union  has  failed,  either  by  an  abuse  of  power  on  the  part  of  its 
members,  or  other  causes.  Its  direct  and  immediate  object,  as  it 
concerns  the  withdrawing  member,  is  the  dissolution  of  the  associ- 
ation or  union,  as  far  as  it  is  concerned.  On  the  contrary,  the 
object  of  nullification  is  to  confine  the  agent  within  the  Hmits 
of  his  powers,  by  arresting  his  acts  transcending  them,  not 
with  the  view  of  destroying  the  delegated  or  trust  power,  but  to  pre 
seroe  it,  by  compelling  the  agent  to  fulfil  the  object  for  which  the 
agency  or  trust  was  created;  and  is  applicable  only  to  cases 
where  the  trust  or  delegated  powers  are  transcended  on  the  part  of 
the  agent.  .  .  , 


CHAPTER  XXXVI 

NULLIFICATION   IN    SOUTH    CAROLINA 

By  the  year  1832  the  people  of  South  Carolina  were  prepared  to  put 
the  doctrine  of  nullification  to  a  practical  test.  The  preliminary  steps  in 
the  process  conformed  to  Calhoun's  views.  The  ordmance  not  only 
declared  the  various  tariff  acts  null  and  void,  but  pointed  out  to  the  legis- 
lature how  it  should  prevent  the  collection  of  duties.  In  measuring  the 
success  of  nullification  as  a  constitutional  remedy,  many  considerations 
—  which  cannot  be  easily  illustrated  by  selected  documents  —  must  be 
taken  into  account.  The  legislature  of  South  Carolina  met  the  demands 
of  the  convention  by  passing  the  Replevin  and  other  acts.  Over  against 
these  measures,  however,  must  be  set  President  Jackson's  arraignment  of 
the  ordinance,  the  uninterrupted  collection  of  duties  in  South  Carolina, 
and  the  Force  Act.  South  Carolina  could  point,  to  be  sure,  to  the  lower 
duties  of  the  compromise  tariff  of  1833  as  evidence  that  nullification  had 
accomplished  its  purpose,  and  to  its  ordinance  nuUifying  the  Force  Act 
as  evidence  that  nullification  had  not  been  abandoned  as  a  remedy.  On 
the  other  hand,  no  State  sustained  the  position  of  South  Carolina,  and  the 
Force  Act  remained  on  the  statute  books  of  the  United  States  —  a  silent 
reminder  that  the  Government  at  Washington  had  not  recognized  nulli- 
fication as  a  constitutional  remedy. 

loi.  South  Carolina  Ordinance  of  Nullification.^ 

Whereas  the  Congress  of  the  United  States,  by  various  acts, 
purporting  to  be  acts  laying  duties  and  imposts  on  foreign 
imports,  but  in  reality  intended  for  the  protection  of  domestic 
manufactures,  and  the  giving  of  bounties  to  classes  and  indi- 
viduals engaged  in  particular  employments,  at  the  expense  and 
to  the  injury  and  oppression  of  other  classes  and  individuals, 
and  by  wholly  exempting  from  taxation  certain  foreign  com- 
modities, such  as  are  not  produced  or  manufactured  in  the 
United  States,  to  afford  a  pretext  for  imposing  higher  and 
excessive  duties  on  articles  similar  to  those  intended  to  be 
protected,  hath  exceeded  its  just  powers  under  the  Constitu- 
tion, which  confers  on  it  no  authority  to  afford  such  protection, 
and  hath  violated  the  true  meaning  and  intent  of  the  Consti- 
1  November  24, 1832.  Senate  Documents,  No.  30, 22  Cong.,  2  Sess.,  36-38. 


NULLIFICATION  IN  SOUTH  CAROLINA    327 

tution,  which  provides  for  equality  in  imposing  the  burthens 
of  taxation  upon  the  several  States  and  portions  of  the  confed- 
eracy :  And  whereas  the  said  Congress,  exceeding  its  just  power 
to  impose  taxes  and  collect  revenue  for  the  purpose  of  effecting 
and  accomplishing  the  specific  objects  and  purposes  which  the 
Constitution  of  the  United  States  authorizes  it  to  effect  and 
accomplish,  hath  raised  and  collected  unnecessary  revenue  for 
objects  unauthorized  by  the  Constitution : 

We,  therefore,  the  people  of  the  State  of  South  Carolina  in 
Convention  assembled,  do  declare  and  ordain,  and  it  is  hereby 
declared  and  ordained,  that  the  several  acts  and  parts  of  acts 
of  the  Congress  of  the  United  States,  purporting  to  be  laws  for 
the  imposing  of  duties  and  imposts  on  the  importation  of 
foreign  commodities,  and  now  having  actual  operation  and 
effect  within  the  United  States,  and,  more  especially,  an  act 
entitled  "An  act  in  alteration  of  the  several  acts  imposing 
duties  on  imports,"  approved  on  the  nineteenth  day  of  May, 
one  thousand  eight  hundred  and  twenty-eight,  and  also  an 
act  entitled  "An  act  to  alter  and  amend  the  several  acts  im- 
posing duties  on  imports,"  approved  on  the  fourteenth  day  of 
July,  one  thousand  eight  hundred  and  thirty- two,  are  unauthor- 
ized by  the  Constitution  of  the  United  States,  and  violate  the 
true  meaning  and  intent  thereof,  and  are  null,  void,  and  no 
law,  nor  binding  upon  this  State,  its  officers  or  citizens ;  and  all 
promises,  contracts,  and  obligations,  made  or  entered  into,  or 
to  be  made  or  entered  into,  with  purpose  to  secure  the  duties 
imposed  by  the  said  acts,  and  all  judicial  proceedings  which 
shall  be  hereafter  had  in  affirmance  thereof,  are  and  shall  be 
held  utterly  null  and  void. 

And  it  is  further  ordained,  that  it  shall  not  be  lawful  for  any 
of  the  constituted  authorities,  whether  of  this  State  or  of  the 
United  States,  to  enforce  the  payment  of  duties  imposed  by 
the  said  acts  within  the  limits  of  this  State;  but  it  shall  be  the 
duty  of  the  Legislature  to  adopt  such  measures  and  pass  such 
acts  as  may  be  necessary  to  give  full  effect  to  this  ordinance, 
and  to  prevent  the  enforcement  and  arrest  the  operation  of  the 
said  acts  and  parts  of  acts  of  the  Congress  of  the  United  States 


328  NATION  V.  STATE 

w-ithin  the  limits  of  this  State,  from  and  after  the  ist  day  of 
February  next,  and  the  duty  of  all  other  constituted  authori- 
ties, and  of  all  persons  residing  or  being  w-ithin  the  limits  of  this 
State,  and  they  are  hereby  required  and  enjoined,  to  obey  and 
give  effect  to  this  ordinance,  and  such  acts  and  measures  of  the 
Legislature  as  may  be  passed  or  adopted  in  obedience  thereto. 

And  it  is  further  ordained,  that  in  no  case  of  law  or  equity, 
decided  in  the  courts  of  this  State,  wherein  shall  be  drawn  in 
question  the  authority  of  this  ordinance,  or  the  validity  of  such 
act  or  acts  of  the  Legislature  as  may  be  passed  for  the  purpose 
of  giving  effect  thereto,  or  the  validity  of  the  aforesaid  acts  of 
Congress,  imposing  duties,  shall  any  appeal  be  taken  or  allowed 
to  the  Supreme  Court  of  the  United  States,  nor  shall  any  copy 
of  the  record  be  permitted  or  allowed  for  that  purpose;  and  if 
any  such  appeal  shall  be  attempted  to  be  taken,  the  courts  of 
this  State  shall  proceed  to  execute  and  enforce  their  judgments, 
according  to  the  laws  and  usages  of  the  State,  without  reference 
to  such  attempted  appeal,  and  the  person  or  persons  attempt- 
ing to  take  such  appeal  may  be  dealt  with  as  for  a  contempt 
of  the  court. 

And  it  is  further  ordained,  that  all  persons  bow  [now]  holding 
any  office  of  honor,  profit,  or  trust,  civil  or  military',  under  this 
State,  (members  of  the  Legislature  excepted,)  shall,  within 
such  time,  and  in  such  manner  as  the  Legislature  shall  prescribe, 
take  an  oath  well  and  truly  to  obey,  execute  and  enforce,  this 
ordinance,  and  such  act  or  acts  of  the  Legislature  as  may  be 
passed  in  pursuance  thereof,  according  to  the  true  intent  and 
meaning  of  the  same;  and  on  the  neglect  or  omission  of  any  such 
person  or  persons  so  to  do,  his  or  their  office  or  offices  shall  be 
forthwith  vacated,  and  shall  be  filled  up  as  if  such  person  or 
persons  were  dead  or  had  resigned;  and  no  person  hereafter 
elected  to  any  office  of  honor,  profit,  or  trust,  civil  or  military, 
(members  of  the  Legislature  excepted,)  shall,  until  the  Legis- 
lature shall  otherwise  provide  and  direct,  enter  on  the  execu- 
tion of  his  office,  or  be  in  any  respect  competent  to  discharge 
the  duties  thereof,  until  he  shall,  in  like  manner,  have  taken  a 
similar  oath;  and  no  juror  shall  be  empannelled  in  any  of  the 


NULLIFICATION  IN  SOLTH  CAROLINA    329 

courts  of  this  State,  in  any  cause  in  which  shall  be  in  question 
this  ordinance,  or  any  act  of  the  Legislature  passed  in  pursu- 
ance thereof,  unless  he  shall  first,  in  addition  to  the  usual  oath, 
have  taken  an  oath  that  he  will  well  and  truly  obey,  execute, 
and  enforce  this  ordinance,  and  such  act  or  acts  of  the  Legisla- 
ture as  may  be  passed  to  carry  the  same  into  operation  and 
effect,  according  to  the  true  intent  and  meaning  thereof. 

And  we,  the  people  of  South  Carolina,  to  the  end  that  it  may 
be  fully  understood  by  the  Government  of  the  United  States, 
and  the  people  of  the  co-States,  that  we  are  determined  to 
maintain  this,  our  ordinance  and  declaration,  at  ever}'  hazard, 
do  further  declare  that  we  wdll  not  submit  to  the  application  of 
force,  on  the  part  of  the  Federal  Government,  to  reduce  this 
State  to  obedience;  but  that  we  will  consider  the  passage,  by 
Congress,  of  any  act  authorizing  the  emplo}'ment  of  a  military 
or  naval  force  against  the  State  of  South  Carolina,  her  consti- 
tuted authorities  or  citizens;  or  any  act  abolishing  or  closing 
the  ports  of  this  State,  or  any  of  them,  or  otherwise  obstructing 
the  free  ingress  and  egress  of  vessels  to  and  from  the  said  ports, 
or  any  other  act  on  the  part  of  the  Federal  Government,  to 
coerce  the  State,  shut  up  her  ports,  destroy  or  harrass  her  com- 
merce, or  to  enforce  the  acts  hereby  declared  to  be  null  and 
void,  otherwise  than  through  the  ci\il  tribunals  of  the  countr\% 
as  inconsistent  with  the  longer  continuance  of  South  Carolina 
in  the  Union:  and  that  the  people  of  this  State  will  thenceforth 
hold  themselves  absolved  from  all  further  obligation  to  main- 
tain or  preserv-e  their  political  connexion  wath  the  people  of 
the  other  States,  and  will  forthwith  proceed  to  organize  a 
separate  Government,  and  do  all  other  acts  and  things  which 
sovereign  and  independent  States  may  of  right  do. 

102.  President  Jackson  s  Proclamation  to  the  People  of  South 

Carolina.^ 

The  ordinance  is  founded,  not  on  the  indefeasible  right  of 
resisting  acts  which  are  plainly  unconstitutional,    and  too 

^  December  lo,  1832.  Richardson,  Messages  and  Papers  of  tJic  Presi- 
dents, II,  641-52  passim. 


330  NATION  v.  STATE 

oppressive  to  be  endured;  but  on  the  strange  position  that  any 
one  State  may  not  only  declare  an  act  of  Congress  void,  but 
prohibit  its  execution— that  they  may  do  this  consistently  with 
the  Constitution  —  that  the  true  construction  of  that  instru- 
ment permits  a  State  to  retain  its  place  in  the  Union,  and  yet 
be  bound  by  no  other  of  its  laws  than  those  it  may  choose  to 
consider  as  constitutional.  It  is  true,  they  add,  that  to  justify 
this  abrogation  of  a  law,  it  must  be  palpably  contrary  to  the 
Constitution;  but  it  is  evident,  that,  to  give  the  right  of  resist- 
ing laws  of  that  description,  coupled  with  the  uncontrolled  right 
to  decide  what  laws  deserve  that  character,  is  to  give  the  power 
of  resisting  all  laws.  For,  as  by  the  theory,  there  is  no  appeal, 
the  reasons  alleged  by  the  State,  good  or  bad,  must  prevail.  If 
it  should  be  said  that  public  opinion  is  a  sufficient  check  against 
the  abuse  of  this  power,  it  may  be  asked  why  it  is  not  deemed  a 
sufl&cient  guard  against  the  passage  of  an  unconstitutional  act 
by  Congress?  There  is,  however,  a  restraint  in  this  last  case, 
which  makes  the  assumed  power  of  a  State  more  indefensible, 
and  which  does  not  exist  in  the  other.  There  are  two  appeals 
from  an  unconstitutional  act  passed  by  Congress  —  one  to  the 
Judiciary,  the  other  to  the  people,  and  the  States.  There  is  no 
appeal  from  the  State  decision  in  theory,  and  the  practical 
illustration  shows  that  the  courts  are  closed  against  an  applica- 
tion to  review  it,  both  judges  and  jurors  being  sworn  to  decide 
in  its  favor.  But  reasoning  on  this  subject  is  superfluous,  when 
our  social  compact,  in  express  terms,  declares  that  the  laws  of 
the  United  States,  its  Constitution,  and  treaties  made  under 
it,  are  the  supreme  law  of  the  land;  and,  for  greater  caution, 
adds  "that  the  judges  in  every  State  shall  be  bound  thereby, 
anything  in  the  Constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding."   And  it  may  be  asserted  without  fear 
of  refutation,  that  no  Federative  Government  could  exist  with- 
out a  similar  provision.    Look  for  a  moment  to  the  conse- 
quence. If  South  Carolina  considers  the  revenue  laws  unconsti- 
tutional, and  has  a  right  to  prevent  their  execution  in  the  port 
of  Charleston,  there  would  be  a  clear  constitutional  objection 
to  their  collection  in  every  other  port,  and  no  revenue  could  be 


NULLIFICATION  IN  SOUTH  CAROLINA    331 

collected  anywhere;  for  all  imposts  must  be  equal.  It  is  no 
answer  to  repeat,  that  an  unconstitutional  law  is  no  law,  so 
long  as  the  question  of  its  legality  is  to  be  decided  by  the  State 
itself;  for  every  law  operating  injuriously  upon  any  local  inter- 
est will  be  perhaps  thought,  and  certainly  represented,  as  uncon- 
stitutional, and,  as  has  been  shown,  there  is  no  appeal.  .  .  . 

I  consider,  then,  the  power  to  annul  a  law  of  the  United 
States,  assumed  by  one  State,  incompatible  with  the  exist- 
ence OF  THE  Union,  contradicted  expressly  by  the  letter 
OF  THE  Constitution,  unauthorized  by  its  spirit,  incon- 
sistent WITH  EVERY  PRINCIPLE  ON  WHICH  IT  WAS  FOUNDED, 
and  destructive  OF  THE  GREAT  OBJECT  FOR  WHICH  IT  WAS 
FORMED. 

After  this  general  view  of  the  leading  principle,  we  must 
examine  the  particular  application  of  it  which  is  made  in  the 
ordinance. 

The  preamble  rests  its  justification  on  these  grounds:  It 
assumes,  as  a  fact,  that  the  obnoxious  laws,  although  they 
purport  to  be  laws  for  raising  revenue,  were  in  reality  intended 
for  the  protection  of  manufactures,  which  purpose  it  asserts 
to  be  unconstitutional;  that  the  operation  of  these  laws  is 
unequal;  that  the  amount  raised  by  them  is  greater  than  is 
required  by  the  wants  of  the  Government;  and,  finally,  that 
the  proceeds  are  to  be  applied  to  objects  unauthorized  by  the 
Constitution.  These  are  the  only  causes  alleged  to  justify  an 
open  opposition  to  the  laws  of  the  country,  and  a  threat  of 
seceding  from  the  Union,  if  any  attempt  should  be  made  to 
enforce  them.  The  first  virtually  acknowledges  that  the  law 
in  question  was  passed  under  a  power  expressly  given  by  the 
Constitution  to  lay  and  collect  imposts;  but  its  constitution- 
ality is  drawn  in  question  from  the  motives  of  those  who  passed 
it.  However  apparent  this  purpose  may  be  in  the  present  case, 
nothing  can  be  more  dangerous  than  to  admit  the  position  that 
an  unconstitutional  purpose,  entertained  by  the  members  who 
assent  to  a  law  enacted  under  a  constitutional  power,  shall 
make  that  law  void:  for  how  is  that  purpose  to  be  ascertained? 
Who  is  to  make  the  scrutiny?  How  often  may  bad  purposes  be 


332  NATION  V.  STATE 

falsely  imputed  —  in  how  many  cases  are  they  concealed  by 
false  professions  —  in  how  many  is  no  declaration  of  motive 
made?  Admit  this  doctrine,  and  you  give  to  the  States  an 
uncontrolled  right  to  decide,  and  every  law  may  be  annulled 
under  this  pretext.  If,  therefore,  the  absurd  and  dangerous 
doctrine  should  be  admitted,  that  a  State  may  annul  an  uncon- 
stitutional law,  or  one  that  it  deems  such,  it  will  not  apply  to 
the  present  case. 

The  next  objection  is,  that  the  laws  in  question  operate  un- 
equally. This  objection  may  be  made  with  truth,  to  every  law 
that  has  been  or  can  be  passed  The  wisdom  of  man  never  yet 
contrived  a  system  of  taxation  that  would  operate  with  perfect 
equaHty,  If  the  unequal  operation  of  a  law  makes  it  unconsti- 
tutional, and  if  all  laws  of  that  description  may  be  abrogated 
by  any  State  for  that  cause,  then  indeed  is  the  Federal  Consti- 
tution unworthy  of  the  slightest  effort  for  its  preservation.  .  .  . 

The  two  remaining  objections  made  by  the  ordinance  to 
these  laws,  are  that  the  sums  intended  to  be  raised  by  them 
are  greater  than  are  required,  and  that  the  proceeds  will  be 
unconstitutionally  employed. 

The  Constitution  has  given,  expressly,  to  Congress  the  right 
of  raising  revenue,  and  of  determining  the  sum  the  public 
exigencies  will  require.  The  States  have  no  control  over  the 
exercise  of  this  right  other  than  that  which  results  from  the 
power  of  changing  the  representatives  who  abuse  it,  and  thus 
procure  redress.  Congress  may,  undoubtedly,  abuse  this  dis- 
cretionary power,  but  the  same  may  be  said  of  others  with 
which  they  are  vested.  Yet  the  discretion  must  exist  some- 
where. The  Constitution  has  given  it  to  the  representatives 
of  all  the  people,  checked  by  the  representatives  of  the  States, 
and  by  the  Executive  Power.  The  South  Carolina  construc- 
tion gives  it  to  the  Legislature  or  the  Convention  of  a  single 
State,  where  neither  the  people  of  the  different  States,  nor  the 
States  in  their  separate  capacity,  nor  the  Chief  Magistrate 
elected  by  the  people,  have  any  representation.  Which  is  the 
most  discreet  disposition  of  the  power?  .  .  . 

These  are  the  alternatives  that  are  presented  by  the  Con- 


NULLIFICATION  IN  SOUTH  CAROLINA    333 

vention :  a  repeal  of  all  the  acts  for  raising  revenue,  leaving  the 
Government  without  the  means  of  support,  or  an  acquiescence 
in  the  dissolution  of  our  Union  by  the  secession  of  one  of  its 
members.  When  the  first  was  proposed,  it  was  known  that  it 
could  not  be  listened  to  for  a  moment.    It  was  known,  if  force 
was  applied  to  oppose  the  execution  of  the  laws  that  it  must  be 
repelled  by  force;  that  Congress  could  not,  without  invoKdng 
itself  in  disgrace  and  the  country  in  ruin,  accede  to  the  proposi- 
tion: and  yet  if  this  is  not  done  in  a  given  day,  or  if  any  attempt 
is  made  to  execute  the  laws,  the  State  is,  by  the  ordinance, 
declared  to  be  out  of  the  Union.  The  majority  of  a  Convention 
assembled  for  the  purpose,  have  dictated  these  terms,  or  rather 
this  rejection  of  all  terms,  in  the  name  of  the  people  of  South 
Carolina.   It  is  true  that  the  Governor  of  the  State  speaks  of 
the  submission  of  their  grievances  to  a  Convention  of  all  the 
States,  which,  he  says,  they  "sincerely  and  anxiously  seek  and 
desire."  Yet  this  obvious  and  constitutional  mode  of  obtaining 
the  sense  of  the  other  States  on  the  construction  of  the  federal 
compact,   and   amending  it,   if  necessary,   has   never  been 
attempted  by  those  who  have  urged  the  State  on  to  this 
destructive  measure.   The  State  might  have  proposed  the  call 
for  a  General  Convention  to  the  other  States;  and  Congress, 
if  a  sufficient  number  of  them  concurred,  must  have  called  it. 
But  the  first  magistrate  of  South  Carolina,  when  he  expressed 
a  hope  that,  "on  a  review  by  Congress  and  the  functionaries  of 
the  General  Government,  of  the  merits  of  the  controversy," 
such  a  Convention  will  be  accorded  to  them,  must  have  known 
that  neither   Congress,   nor  any  functionary  of   the  General 
Government,  has  authority  to  call  such  a  Convention,  unless  it 
be  demanded  by  two-thirds  of  the  States.    This  suggestion, 
then,  is  another  instance  of  the  reckless  inattention  to  the  pro- 
visions of  the  Constitution  with  which  this  crisis  has  been 
madly  hurried  on;  or  of  the  attempt  to  persuade  the  people 
that  a  constitutional  remedy  had  been  sought  and  refused.  If 
the  Legislature  of  South  Carolina  "anxiously  desire  "  a  General 
Convention  to  consider  their  complaints,  why  have  they  not 
made  application  for  it  in  the  way  the  Constitution  points  out? 


334  NATION  v.  STATE 

The  assertion  that  they  "earnestly  seek  it"  is  completely 
negatived  by  the  omission. 

This,  then,  is  the  position  in  which  we  stand.  A  small 
majority  of  the  citizens  of  one  State  in  the  Union  have  elected 
delegates  to  a  State  Convention;  that  Convention  has  ordained 
that  all  the  revenue  laws  of  the  United  States  must  be  repealed, 
or  that  they  are  no  longer  a  member  of  the  Union.  The  Gov- 
ernor of  that  State  has  recommended  to  the  Legislature  the  rais- 
ing of  an  army  to  carry  the  secession  into  effect,  and  that  he 
may  be  empowered  to  give  clearances  to  vessels  in  the  name 
of  the  State.  No  act  of  violent  opposition  to  the  laws  has  yet 
been  committed,  but  such  a  state  of  things  is  hourly  appre- 
hended; and  it  is  the  intent  of  this  instrument  to  proclaim,  not 
only  that  the  duty  imposed  on  me  by  the  Constitution  "to 
take  care  that  the  laws  be  faithfully  executed,"  shall  be  per- 
formed to  the  extent  of  the  powers  already  vested  in  me  by 
law,  or  of  such  others  as  the  wisdom  of  Congress  shall  devise 
and  entrust  to  me  for  that  purpose,  but  to  warn  the  citizens 
of  South  Carolina  who  have  been  deluded  into  an  opposition 
to  the  laws,  of  the  danger  they  will  incur  by  obedience  to  the 
illegal  and  disorganizing  ordinance  of  the  Convention ;  to  exhort 
those  who  have  refused  to  support  it  to  persevere  in  their  deter- 
mination to  uphold  the  Constitution  and  laws  of  their  country; 
and  to  point  out  to  all  the  perilous  situation  into  which  the 
good  people  of  that  State  have  been  led,  and  that  the  course 
they  are  urged  to  pursue  is  one  of  ruin  and  disgrace  to  the  very 
State  whose  rights  they  afifect  to  support.  .  .  . 


CHAPTER  XXXVII 

THE    NATURE    OF  THE    UNION 

Down  to  the  time  of  Calhoun,  it  was  commonly  held  that  the  Union 
had  been  formed  by  an  agreement  or  compact  to  which  the  States  were 
parties.  When  the  Constitution  was  framed,  sovereignty  was  divided. 
As  the  Supreme  Court  said  in  Chisholm  v.  Georgia,  "The  United  States 
are  sovereign  as  to  all  the  powers  of  government  actually  surrendered. 
Each  State  in  the  Union  is  sovereign  as  to  the  powers  reserved."  In  his 
proclamation  to  the  people  of  South  Carolina,  President  Jackson  com- 
bated nullification  on  the  ground  that  the  Union  was  a  binding  compact. 
The  foremost  defender  of  the  nationalist  theory  of  the  Union  was  Daniel 
Webster.  In  his  famous  reply  to  Hayne  in  the  Senate,  January  26  and  27, 
1830,  he  repudiated  the  current  compact  theory.  He  contended  that  the 
Union  was  established  by  the  people  of  the  United  States  just  as  a  State 
constitution  is  formed  by  an  agreement  between  individuals.  "When  the 
people  agree  to  erect  a  government  and  actually  erect  it,  the  thing  is  done, 
and  the  agreement  is  at  an  end.  The  compact  is  executed,  and  the  end 
designed  by  it  is  attained."  From  Webster's  point  of  view,  the  Consti- 
tution is  not  a  contract,  but  a  supreme  law  ordained  and  established  by 
the  people  of  the  United  States.  The  Union  is  "  the  association  of  the  peo- 
ple under  a  constitution  of  government,  uniting  their  highest  interests, 
cementing  their  present  enjoyments,  and  blending  in  an  indivisible  mass 
all  their  hopes  for  the  future." 

103.  The  Federal  Compact  a  Binding  Obligation.^ 

The  Constitution  of  the  United  States  then  forms  a  govern- 
ment, not  a  league;  and  whether  it  be  formed  by  compact 
between  the  States,  or  in  any  other  manner,  its  character  is  the 
same.  It  is  a  government  in  which  all  the  people  are  repre- 
sented, which  operates  directly  on  the  people  individually,  not 
upon  the  States  —  they  retained  all  the  power  they  did  not 
grant.  But  each  State  having  expressly  parted  with  so  many 
powers  as  to  constitute,  jointly  with  the  other  States,  a  single 
nation,  cannot,  from  that  period,  possess  any  right  to  secede, 
because  such  secession  does  not  break  a  league,  but  destroys 

^  Proclamation  of  President  Jackson  to  the  People  of  South  Carolina, 
December  10,  1832.  Richardson,  Messages  and  Papers  of  the  Presidents, 
u,  648-50  passim. 


336  NATION  v.  STATE 

the  unity  of  a  nation;  and  any  injury  to  that  unity  is  not  only 
a  breach  which  would  result  from  the  contravention  of  a  com- 
pact, but  it  is  an  offence  against  the  whole  Union.  To  say  that 
any  State  may  at  pleasure  secede  from  the  Union,  is  to  say 
that  the  United  States  are  not  a  nation,  because  it  would  be  a 
solecism  to  contend  that  any  part  of  a  nation  might  dissolve 
its  connexion  with  the  other  parts,  to  their  injury  or  ruin,  with- 
out committing  any  offence.  Secession,  like  any  other  revolu- 
tionary act,  may  be  morally  justified  by  the  extremity  of 
oppression ;  but  to  call  it  a  constitutional  right,  is  confounding 
the  meaning  of  terms;  and  can  only  be  done  through  gross 
error,  or  to  deceive  those  who  are  willing  to  assert  a  right,  but 
would  pause  before  they  made  a  revolution,  or  incur  the  pen- 
alties consequent  on  a  failure. 

Because  the  Union  was  formed  by  compact,  it  is  said  the 
parties  to  that  compact  may,  when  they  feel  themselves 
aggrieved,  depart  from  it:  but  it  is  precisely  because  it  is  a 
compact  that  they  cannot.  A  compact  is  an  agreement  or 
binding  obligation.  It  may  by  its  terms  have  a  sanction  or 
penalty  for  its  breach  or  it  may  not.  If  it  contains  no  sanction, 
it  may  be  broken  with  no  other  consequence  than  moral  guilt: 
if  it  have  a  sanction,  then  the  breach  insures  the  designated  or 
implied  penalty.  A  league  between  independent  nations,  gen- 
erally, has  no  sanction  other  than  a  moral  one;  or  if  it  should 
contain  a  penalty,  as  there  is  no  common  superior,  it  cannot  be 
enforced.  A  government,  on  the  contrary,  always  has  a  sanc- 
tion, express  or  implied;  and,  in  our  case,  it  is  both  necessarily 
implied  and  expressly  given.  An  attempt,  by  force  of  arms,  to 
destroy  a  government,  is  an  offence  by  whatever  means  the 
constitutional  compact  may  have  been  formed,  and  such 
government  has  the  right,  by  the  law  of  self-defence,  to  pass 
acts  for  punishing  the  offender,  unless  that  right  is  modified, 
restrained,  or  resumed  by  the  constitutional  act.  In  our  system, 
although  it  is  modified  in  the  case  of  treason,  yet  authority  is  ex- 
pressly given  to  pass  all  laws  necessary  to  carry  its  powers  into 
effect,  and,  under  this  grant,  provision  has  been  made  for  punish- 
ing acts  which  obstruct  the  due  administration  of  the  laws. .  .  . 


THE  NATURE  OF  THE  UNION        337 

The  States  severally  have  not  retained  their  entire  sover- 
eignty. It  has  been  shown  that,  in  becoming  parts  of  a  nation, 
not  members  of  a  league,  they  surrendered  many  of  their 
essential  parts  of  sovereignty.  The  right  to  make  treaties  — 
declare  war  —  levy  taxes  —  exercise  exclusive  judicial  and 
legislative  powers  —  were  all  of  them  functions  of  sovereign 
power.  The  States,  then,  for  all  these  purposes,  were  no  longer 
sovereign.  The  allegiance  of  their  citizens  was  transferred,  in 
the  first  instance,  to  the  Government  of  the  United  States: 
they  became  American  citizens,  and  owed  obedience  to  the 
Constitution  of  the  United  States,  and  to  laws  made  in  con- 
formity with  the  powers  it  vested  in  Congress.  This  last  posi- 
tion has  not  been,  and  cannot  be  denied.  How,  then,  can  that 
State  be  said  to  be  sovereign  and  independent  whose  citizens 
owe  obedience  to  laws  not  made  by  it,  and  whose  magistrates 
are  sworn  to  disregard  those  laws  when  they  come  in  conflict 
with  those  passed  by  another?  What  shows  conclusively  that 
the  States  cannot  be  said  to  have  reserved  an  undivided  sover- 
eignty, is,  that  they  expressly  ceded  the  right  to  punish  treason, 
not  treason  against  their  separate  power,  but  treason  against 
the  United  States.  Treason  is  an  offence  against  sovereignty, 
and  sovereignty  must  reside  with  the  power  to  punish  it.  But 
the  reserved  rights  of  the  States  are  not  less  sacred  because 
they  have,  for  their  common  interest,  made  the  General 
Government  a  depository  of  these  powers.  .  .  . 

104.  Webster's  Reply  to  Hayne  of  South  Carolina.^ 

I  understand  the  honorable  gentleman  from  South  Carolina 
to  maintain,  that  it  is  a  right  of  the  State  Legislatures  to  inter- 
fere, whenever,  in  their  judgment,  this  Government  transcends 
its  constitutional  limits,  and  to  arrest  the  operation  of  its 
laws.  .  .  . 

What  he  contends  for,  is,  that  it  is  constitutional  to  interrupt 
the  administration  of  the  constitution  itself,  in  the  hands  of 
those  who  are  chosen  and  sworn  to  administer  it,  by  the  direct 

^  Senate.  January  26-27,  1830.  Works  of  Daniel  Webster  (1851),  ill, 
270-342,  passim. 


338  NATION  v.  STATE 

interference,  in  form  of  law,  of  the  States,  in  virtue  of  their 
sovereign  capacity.  The  inherent  right  in  the  people  to  reform 
their  government,  I  do  not  deny;  and  they  have  another  right, 
and  that  is,  to  resist  unconstitutional  laws,  without  overturn- 
ing the  Government.  It  is  no  doctrine  of  mine,  that  unconsti- 
tutional laws  bind  the  people.  The  great  question  is,  whose 
prerogative  is  it  to  decide  on  the  constitutionality  or  uncon- 
stitutionality of  the  laws?  On  that,  the  main  debate  hinges. 
The  proposition,  that,  in  case  of  a  supposed  violation  of  the 
constitution  by  Congress,  the  States  have  a  constitutional  right 
to  interfere,  and  annul  the  law  of  Congress,  is  the  proposition 
of  the  gentleman:  I  do  not  admit  it.  If  the  gentleman  had 
intended  no  more  than  to  assert  the  right  of  revolution,  for 
justifiable  cause,  he  would  have  said  only  what  all  agree  to. 
But  I  cannot  conceive  that  there  can  be  a  middle  course, 
between  submission  to  the  laws,  when  regularly  pronounced 
constitutional,  on  the  one  hand,  and  open  resistance,  which  is 
revolution,  or  rebellion,  on  the  other.  I  say,  the  right  of  a 
State  to  annul  a  law  of  Congress,  cannot  be  maintained  but 
on  the  ground  of  the  unalienable  right  of  man  to  resist  oppres- 
sion; that  is  to  say,  upon  the  ground  of  revolution.  I  admit 
that  there  is  an  ultimate  violent  remedy,  above  the  constitu- 
tion, and  in  defiance  of  the  constitution,  which  may  be  resorted 
to,  when  a  revolution  is  to  be  justified.  But  I  do  not  admit 
that,  under  the  constitution,  and  in  conformity  with  it,  there 
is  any  mode  in  which  a  State  Government,  as  a  member  of  the 
Union,  can  interfere  and  stop  the  progress  of  the  General 
Government,  by  force  of  her  own  laws,  under  any  circumstances 
whatever. 

This  leads  us  to  inquire  into  the  origin  of  this  Government, 
and  the  source  of  its  power.  Whose  agent  is  it?  Is  it  the  crea- 
ture of  the  State  Legislatures,  or  the  creature  of  the  people? 
If  the  Government  of  the  United  States  be  the  agent  of  the 
State  Governments,  then  they  may  control  it,  provided  they 
can  agree  in  the  manner  of  controlling  it ;  if  it  be  the  agent  of  the 
people,  then  the  people  alone  can  control  it,  restrain  it,  modify, 
or  reform  it.    It  is  observable  enough,  that  the  doctrine  for 


THE  NATURE  OF  THE  UNION        339 

which  the  honorable  gentleman  contends  leads  him  to  the 
necessity  of  maintaining,  not  only  that  this  General  Govern- 
ment is  the  creature  of  the  States,  but  that  it  is  the  creature  of 
each  of  the  States,  severally;  so  that  each  may  assert  the  power, 
for  itself,  of  determining  whether  it  acts  within  the  limits  of 
its  authority.  It  is  the  servant  of  four  and  twenty  masters,  of 
different  wills  and  different  purposes,  and  yet  bound  to  obey 
all.  This  absurdity  (for  it  seems  no  less)  arises  from  a  mis- 
conception as  to  the  origin  of  this  Government  and  its  true 
character.  It  is,  sir,  the  people's  constitution,  the  people's  Gov- 
ernment; made  for  the  people;  made  by  the  people;  and  an- 
swerable to  the  people.  The  people  of  the  United  States  have 
declared  that  this  constitution  shall  be  the  supreme  law.  We 
must  either  admit  the  proposition,  or  dispute  their  authority. 
The  States  are,  unquestionably,  sovereign,  so  far  as  their  sov- 
ereignty is  not  affected  by  this  supreme  law.  But  the  State 
Legislatures,  as  political  bodies,  however  sovereign,  are  yet 
not  sovereign  over  the  people.  So  far  as  the  people  have  given 
power  to  the  General  Government,  so  far  the  grant  is  unques- 
tionably good,  and  the  Government  holds  of  the  people,  and 
not  of  the  State  Governments.  We  are  all  agents  of  the  same 
supreme  power,  the  people.  The  General  Government  and  the 
State  Governments  derive  their  authority  from  the  same  source. 
Neither  can,  in  relation  to  the  other,  be  called  primary,  though 
one  is  definite  and  restricted,  and  the  other  general  and  resid- 
uary. The  National  Government  possesses  those  powers  which 
it  can  be  shown  the  people  have  conferred  on  it,  and  no  more. 
All  the  rest  belongs  to  the  State  Governments  or  to  the  people 
themselves.  So  far  as  the  people  have  restrained  State  sover- 
eignty, by  the  expression  of  their  will,  in  the  constitution  of 
the  United  States,  so  far,  it  must  be  admitted.  State  sovereignty 
is  effectually  controlled.  I  do  not  contend  that  it  is,  or  ought  to 
be,  controlled  farther.  The  sentiment  to  which  I  have  referred, 
propounds  that  State  sovereignty  is  only  to  be  controlled  by 
its  own  ''feeling  of  justice;"  that  is  to  say,  it  is  not  to  be  con- 
trolled at  all :  for  one  who  is  to  follow  his  own  feelings  is  under 
no  legal  control.   Now,  however  men  may  think  this  ought  to 


340  NATION  v.  STATE 

be,  the  fact  is,  that  the  people  of  the  United  States  have  chosen 
to  impose  control  on  State  sovereignties.  There  are  those, 
doubtless,  who  wish  they  had  been  left  without  restraint;  but 
the  constitution  has  ordered  the  matter  differently.  To  make 
war,  for  instance,  is  an  exercise  of  sovereignty;  but  the  consti- 
tution declares  that  no  State  shall  make  war.  To  coin  money 
is  another  exercise  of  sovereign  power;  but  no  State  is  at  lib- 
erty to  coin  money.  Again,  the  constitution  says  that  no  sover- 
eign State  shall  be  so  sovereign  as  to  make  a  treaty.  .  .  . 

I  must  now  beg  to  ask,  sir,  whence  is  this  supposed  right  of 
the  states  derived?  Where  do  they  find  the  power  to  interfere 
with  the  laws  of  the  Union?  Sir,  the  opinion  which  the  honor- 
able gentleman  maintains,  is  a  notion  founded  in  a  total  mis- 
apprehension, in  my  judgment,  of  the  origin  of  this  Govern- 
ment, and  of  the  foundation  on  which  it  stands.  I*  hold  it  to 
be  a  popular  Government,  erected  by  the  people;  those  who 
administer  it,  responsible  to  the  people;  and  itself  capable  of 
being  amended  and  modified,  just  as  the  people  may  choose  it 
should  be.  It  is  as  popular,  just  as  truly  emanating  from  the 
people,  as  the  State  Governments.  It  is  created  for  one  pur- 
pose; the  State  Governments  for  another.  It  has  its  own 
powers;  they  have  theirs.  There  is  no  more  authority  with 
them  to  arrest  the  operation  of  a  law  of  Congress,  than  with 
Congress  to  arrest  the  operation  of  their  laws.  We  are  here  to 
administer  a  constitution  emanating  immediately  from  the 
people,  and  trusted,  by  them,  to  our  administration.  It  is  not 
the  creature  of  the  State  Governments.  .  .  , 

The  people,  then,  sir,  erected  this  Government.  They  gave 
it  a  constitution;  and  in  that  constitution  they  have  enumerated 
the  powers  which  they  bestow  on  it.  They  have  made  it  a 
limited  Government.  They  have  defined  its  authority.  They 
have  restrained  it  to  the  exercise  of  such  powers  as  are  granted ; 
and  all  others,  they  declare,  are  reserved  to  the  States  or  the 
people.  But,  sir,  they  have  not  stopped  here.  If  they  had,  they 
would  have  accomplished  but  half  their  work.  No  definition 
can  be  so  clear  as  to  avoid  possibility  of  doubt;  no  Hmitation 
so  precise,  as  to  exclude  all  uncertainty.  Who  then  shall  con- 


THE  NATURE  OF  THE  UNION        341 

strue  this  grant  of  the  people?  Who  shall  interpret  their  will, 
where  it  may  be  supposed  they  have  left  it  doubtful?  With 
whom  do  they  repose  this  ultimate  right  of  deciding  on  the 
powers  of  the  Government?  Sir,  they  have  settled  all  this  in 
the  fullest  manner.  They  have  left  it  with  the  Government 
itself,  in  its  appropriate  branches.  Sir,  the  very  chief  end,  the 
main  design,  for  which  the  whole  constitution  was  framed  and 
adopted  was,  to  estabhsh  a  Government  that  should  not  be 
obliged  to  act  through  State  agency,  or  depend  on  State  opinion 
and  State  discretion.  The  people  had  had  quite  enough  of  that 
kind  of  government,  under  the  Confederacy.  Under  that  sys- 
tem, the  legal  action,  the  application  of  law  to  individuals, 
belonged  exclusively  to  the  States.  Congress  could  only  recom- 
mend; their  acts  were  not  of  binding  force,  till  the  States  had 
adopted  and  sanctioned  them?  Are  we  in  that  condition  still? 
Are  we  yet  at  the  mercy  of  State  discretion,  and  State  con- 
struction? Sir,  if  we  are,  then  vain  will  be  our  attempt  to  main- 
tain the  constitution  under  which  we  sit.  But,  sir,  the  people 
have  wisely  provided,  in  the  constitution  itself,  a  proper,  suit- 
able mode  and  tribunal  for  settling  questions  of  constitutional 
law.  There  are,  in  the  constitution,  grants  of  powers  to  Con- 
gress, and  restrictions  on  these  powers.  There  are,  also,  pro- 
hibitions on  the  States.  Some  authority  must,  therefore,  ne- 
cessarily exist,  having  the  ultimate  jurisdiction  to  fix  and 
ascertain  the  interpretation  of  these  grants,  restrictions,  and 
prohibitions.  The  constitution  has,  itself,  pointed  out,  ordained, 
and  established,  that  authority.  How  has  it  accomplished  this 
great  and  essential  end?  By  declaring,  sir,  that  ''the  constitu- 
tion and  the  laws  of  the  United  States,  made  in  pursuance 
thereof,  shall  be  the  supreme  law  of  the  land,  anything  in  the 
constitution  or  laws  of  any  State  to  the  contrary  notwith- 
standing." 

This,  sir,  was  the  first  great  step.  By  this,  the  supremacy  of 
the  constitution  and  laws  of  the  United  States  is  declared.  The 
people  so  will  it.  No  State  law  is  to  be  valid  which  comes  in 
conflict  with  the  constitution  or  any  law  of  the  United  States 
passed  in  pursuance  of  it.  But  who  shall  decide  this  question 


342  NATION  V.  STATE 

of  interference?  To  whom  lies  the  last  appeal?  This,  sir,  the 
constitution  itself  decides  also,  by  declaring  ''that  the  judicial 
power  shall  extend  to  all  cases  arising  under  the  constitution 
and  laws  of  the  United  States."  These  two  provisions,  sir, 
cover  the  whole  ground.  They  are,  in  truth,  the  key-stone  of  the 
arch.  With  these,  it  is  a  constitution;  without  them,  it  is  a 
confederacy.  In  pursuance  of  these  clear  and  express  provisions, 
Congress  established,  at  its  very  first  session,  m  the  Judicial 
Act,  a  mode  for  carrying  them  into  full  effect,  and  for  bringing 
all  questions  of  constitutional  power  to  the  final  decision  of  the 
Supreme  Court.  It  then,  sir,  became  a  Government.  .  .  . 

If  any  thing  be  found  in  the  national  constitution,  either  by 
original  provision,  or  subsequent  interpretation,  which  ought 
not  to  be  in  it,  the  people  know  how  to  get  rid  of  it.   If  any 
construction  be  established,  unacceptable  to  them,  so  as  to 
become,  practically,  a  part  of  the  constitution,  they  will  amend 
it  at  their  own  sovereign  pleasure.  But  while  the  people  choose 
to  maintain  it  as  it  is;  while  they  are  satisfied  with  it,  and  refuse 
.to  change  it,  who  has  given,  or  who  can  give,  to  the  State 
Legislatures,  a  right  to  alter  it,  either  by  interference,  construc- 
tion, or  otherwise?    Gentlemen  do  not  seem  to  recollect  that 
the  people  have  any  power  to  do  anything  for  themselves;  they 
imagine  there  is  no  safety  for  them  any  longer  than  they  are 
under  the  close  guardianship  of  the  State  Legislatures.    Sir, 
the  people  have  not  trusted  their  safety,  in  regard  to  the  gen- 
eral constitution,  to  these  hands.    They  have  required  other 
security,  and  taken  other  bonds.   They  have  chosen  to  trust 
themselves,  first,  to  the  plain  words  of  the  instrument,  and  to 
such  construction  as  the  Government  itself,  in  doubtful  cases, 
should  put  on  its  own  powers,  under  their  oaths  of  office,  and 
subject  to  their  responsibiHty  to  them :  just  as  the  people  of  a 
State  trust  their  own  State  Governments  with  a  similar  power. 
Secondly,  they  have  reposed  their  trust  in  the  efficacy  of  fre- 
quent elections,  and  in  their  own  power  to  remove  their  own 
servants  and  agents,  whenever  they  see  cause.    Thirdly,  they 
have  reposed  trust  in  the  Judicial  power,  which,  in  order  that  it 
might  be  trustworthy,  they  have  made  as  respectable,  as  dis- 


THE  NATURE  OF  THE  UNIOxN        343 

interested,  and  as  independent  as  was  practicable.  Fourthly, 
they  have  seen  fit  to  rely,  in  case  of  necessity,  or  high  exped- 
iency, on  their  known  and  admitted  power  to  alter  or  amend 
the  constitution,  peaceably  and  quietly,  whenever  experience 
shall  point  out  defects  or  imperfections.  And,  finally,  the 
people  of  the  United  States  have,  at  no  time,  in  no  way, 
directly  or  indirectly,  authorized  any  State  Legislature  to  con- 
strue or  interpret  their  high  instrument  of  Government;  much 
less  to  interfere,  by  their  own  power,  to  arrest  its  course  and 
operation.  .  .  . 


CHAPTER  XXXVIII 

FEDERAL  CONTROL  OF  STATE  GOVERNMENTS 

The  incidents  referred  to  by  the  Court  in  the  case  of  Luther  v.  Borden 
occurred  during  the  Dorr  Rebellion  in  Rhode  Island.  After  the  Revolu- 
tion, Rhode  Island  continued  her  royal  charter  as  the  organic  law  of  the 
Commonwealth.  Under  this  constitution  the  suffrage  was  greatly  re- 
stricted and  much  discontent  was  rife.  Repeated  efforts  were  made  to 
amend  the  constitution,  but  these  were  invariably  defeated  by  the  op- 
position of  the  legal  voters.  Finally,  a  movement  was  set  on  foot  for  a 
convention  to  be  elected  by  universal  suffrage,  which  should  draft  a  con- 
stitution on  democratic  lines.  The  movement  so  far  succeeded  that  a  con- 
vention was  held  and  a  constitution  drafted.  The  attempt  to  put  this 
new  constitution  into  operation  led  to  open  rebellion.  The  governor  of 
the  State  then  called  upon  the  Federal  Government  for  aid. 

105.  President  Tyler  to  the  Governor  of  Rhode  Island.^ 

.  .  .  This  is  the  first  occasion,  so  far  as  the  government  of  a 
State  and  its  people  are  concerned,  on  which  it  has  become 
necessary  to  consider  of  the  propriety  of  exercising  these  high 
and  most  important  constitutional  and  legal  functions.  By 
a  careful  consideration  of  the  above  recited  acts  of  Congress, 
your  Excellency  will  not  fail  to  see,  that  no  power  is  vested  in 
the  Executive  of  the  United  States  to  anticipate  insurrection- 
ary movements  against  the  Government  of  Rhode  Island,  so 
as  to  sanction  the  interposition  of  the  military  authority,  but 
that  there  must  be  an  actual  insurrection  manifested  by  lawless 
assemblages  of  the  people  or  othen\dse,  to  whom  a  proclama- 
tion may  be  addressed,  and  who  may  be  required  to  betake 
themselves  to  their  respective  abodes.  I  have,  however,  to 
assure  your  Excellency  that  should  the  time  arrive,  (and  my 
fervent  prayer  is  that  it  may  never  come,)  when  an  insurrec- 
tion shall  exist  against  the  Government  of  Rhode  Island,  and 
a  requisition  shall  be  made  upon  the  Executive  of  the  United 
States  to  furnish  that  protection  which  is  guarantied  to  each 

^  April  II,  1842.  Broadside  in  Yale  University  Library. 


FEDERAL  CONTROL  OF  STATES   345 

State  by  the  Constitution  and  laws,  I  shall  not  be  found  to 
shrink  from  the  performance  of  a  duty,  which  while  it  would 
be  the  most  painful,  is  at  the  same  time  the  most  imperative. 
I  have  also  to  say  that,  in  such  a  contingency,  the  Executive 
could  not  look  into  real  or  supposed  defects  of  the  existing 
government,  in  order  to  ascertain  whether  some  other  plan  of 
government  proposed  for  adoption  was  better  suited  to  the 
wants  and  more  in  accordance  with  the  wishes  of  any  portion 
of  her  citizens.  To  throw  the  Executive  power  of  this  Govern- 
ment into  any  such  controversy,  would  be  to  make  the  Presi- 
dent the  armed  arbitrator  between  the  people  of  the  different 
States  and  their  constituted  authorities,  and  might  lead  to  an 
usurped  power,  dangerous  alike  to  the  stabihty  of  the  State 
Governments  and  the  liberties  of  the  people. 

It  will  be  my  duty,  on  the  contrary,  to  respect  the  requisi- 
tions of  that  government  which  has  been  recognized  as  the 
existing  Government  of  the  State  through  all  time  past,  until 
I  shall  be  advised  in  regular  manner,  that  it  has  been  altered 
and  abolished,  and  another  substituted  in  its  place,  by  legal 
and  peaceable  proceedings,  adopted  and  pursued  by  the 
authorities  and  people  of  the  State.  .  .  . 

106.  Memorial  of  the  Democratic  Members  of  the  Legislature  of 
Rhode  Island.^ 

...  A  large  majority  of  the  adult  male  inhabitants  of  the 
State  of  Rhode  Island,  being  citizens  of  the  United  States,  after 
having  long  waited  in  vain  for  an  amendment,  through  the  old 
charter  government,  of  the  political  institutions  of  this  State, 
in  order  to  bring  them  into  conformity  to  the  standard  of 
a  democratic  republic,  to  define  and  regulate  the  unlimited 
powers  of  the  General  Assembly,  and  to  secure  to  the  people 
the  right  of  suffrage  and  other  just  rights,  of  which  they  had 
long  been  deprived,  in  the  exercise  of  their  original  sovereign 
capacity,  did,  in  December,  1841,  rightfully  adopt  and  duly 
ratify  a  constitution  of  government,  republican  in  its  form  and 
character,  agreeably  to  the  guaranty  of  the  constitution  of  the 
^  February  i,  1844.  House  Reports,  No.  546.  28  Cong.,  i  Sess. 


346  NATION  v.   STATE 

United  States.  The  votes  given  in  for  this  constitution  were 
signed  by  the  voters,  and  have  been  carefully  preserved  as  a 
standing  evidence  of  the  will  and  action  of  the  people. 

Previously  to  the  election  of  a  government  under  the  people's 
constitution,  the  President  of  the  United  States,  issued  a  letter 
to  the  Governor,  then  acting  under  the  charter  and  laws,  in 
which  he  undertakes  to  prescribe  the  mode  of  proceeding  to 
amend  the  institutions  of  a  State,  and  declares,  in  effect,  that 
the  only  valid  change  must  be  made  by  "the  authorities  and 
people;"  placing  the  "authorities"  before  the  people,  making 
their  consent  and  permission  requisite  to  the  action  of  the 
people,  and  reversing  the  great  fundamental  doctrine  of  our 
democratic  republic  —  that  all  just  government  is  founded  in 
the  consent  of  the  governed ;  and  that  the  people  are,  of  course, 
superior  to  the  servants  intrusted  with  temporary  power  for 
convenience,  and  in  order  to  do  the  will  of  their  superiors. 

A  majority  of  the  old  charter  House  of  Representatives  was 
elected  by  towns  containing  less  than  one-third  of  the  popula- 
tion of  the  State,  and  the  voters  in  these  towns  were  a  third 
of  the  adult  male  inhabitants;  so  that  the  people  of  this  State 
were  ruled,  under  the  old  charter  system,  by  one-ninth  part  of 
the  adult  male  population,  without  whose  permission,  through 
their  "authorities"  in  the  General  Assembly,  according  to  the 
President,  they  could  never  come  to  the  enjoyment  of  their 
inahenable  rights.  On  the  other  hand,  leaving  to  each  State 
the  question  who  are  the  people,  we  contend  that  a  majority 
of  the  whole  people  are  competent,  of  themselves,  without 
permission,  by  an  authentic  act,  to  change  their  form  of  govern- 
ment. 

The  undersigned  would  call  your  attention  to  another  im- 
portant fact  —  that  there  was  no  mode  prescribed  by  charter, 
law,  or  usage,  in  this  State,  for  proceeding  to  change  the 
government  and  to  form  a  written  constitution.  All  that  the 
Assembly  could  do  was  to  request  the  people  to  act;  and  they 
were  at  liberty  to  do  so,  or  not;  and  could  act  as  well  without 
the  request,  which  gave  no  power,  as  with  it. 

The  President,  in  his  letter  aforesaid,  conveyed  the  threat 


FEDERAL  CONTROL  OF  STATES  347 

of  an  intervention  with  the  forces  of  the  United  States,  in  case 
the  proceedings  of  the  people  to  set  up  their  government  should 
be  persisted  in;  and  by  increasing  the  number  of  troops  at  New- 
port, and  by  other  demonstrations  within  striking  distance, 
he  gave  all  the  advantages  of  actual  military  cooperation 
and  invasion  to  the  old  charter  party  and  their  government, 
and  enabled  them,  with  the  union  of  the  State  treasury  and 
the  mihtary,  to  suppress  the  government  elected  under  the 
people's  constitution;  to  trample  upon  the  rights  of  our  citi- 
zens; maintain  martial  law  over  the  people,  in  derogation  of  all 
law;  to  impose  on  the  people,  while  thus  under  duress,  another 
constitution,  unjust,  restrictive,  and  anti-repubHcan,  adopted 
by  less  than  one- third  of  the  adult  male  citizens;  and,  generally, 
to  govern  the  State  as  a  conquered  territory,  by  despotic  laws 
and  by  the  mihtary,  and  to  exercise  a  political  proscription, 
extending  through  all  the  relations  of  society  and  business, 
such  as  has  never  before  been  witnessed  in  any  State  in  this 
Union.  Many  of  our  citizens  have  been  driven  from  the  State, 
into  exile,  by  the  course  of  the  successful  party.  Large  numbers 
have  been  imprisoned,  and  about  fifteen  are  now  under  indict- 
ments for  pretended  treason  and  misdemeanors.  One  of  their 
number  (Thomas  W.  Dorr,  who  was  elected  Governor  of  the 
State  under  the  people's  constitution)  has  been  kept  in  close 
prison  for  more  than  three  months,  under  a  charge  of  treason; 
but,  in  reality,  for  attempting  to  maintain,  according  to  his 
oath  of  office,  the  people's  constitution,  and  for  carrying  out 
the  doctrines  of  the  declaration  of  American  independence. 

The  undersigned  beheve,  and  affirm,  that  this  interference 
of  the  President  in  the  affairs  of  a  State,  small  of  territory,  easy 
of  access,  with  an  imperfect  military  organization,  and  incap- 
able, by  itself,  of  resisting  a  powerful  attack  from  abroad,  had 
the  effect  of  overawing  the  people  and  of  strengthening  the 
adverse  party;  and  that  it  mainly  caused  the  overthrow  of  the 
people's  constitution  and  government.  If  the  President  had  let 
us  alone,  the  new  government  would  have  been  peaceably 
established,  and  generally  acquiesced  in. 

The  undersigned  desire  to  make  their  solemn  protest  against 


348  NATION  v.  STATE 

the  course  pursued  by  the  President  of  the  United  States.  If, 
under  the  name  of  suppressing  "insurrections"  and  repressing 
"domestic  violence,"  the  President  can  thus  control  the 
States  in  their  internal  affairs,  and  cast  the  sword  into  the 
scale  of  the  party  which  he  espouses,  he  is,  in  fact,  a  military 
dictator  of  all-absorbing  powers,  to  be  brought  out  as  occasion 
may  require;  State  rights  are  a  mockery,  and  the  declaration 
of  independence  is  (as  it  is  here  asserted  to  be)  "a  rhetorical 
flourish,"  intended  for  a  purpose  long  since  gone  by;  popular 
sovereignty  is  a  delusion;  and  we  have  not,  as  was  supposed 
at  the  Revolution,  escaped  from  the  aristocratic  and  monarchial 
doctrine  of  the  Old  World  —  that  government  is  sovereign, 
and  the  people  are  subjects.  .  .  . 

107.  Luther  v.  Borden} 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  Court: 
This  case  has  arisen  out  of  the  unfortunate  political  differ- 
ences which  agitated  the  people  of  Rhode  Island  in  184 1  and 
1842. 

It  is  an  action  of  trespass  brought  by  Martin  Luther,  the 
plaintiff  in  error,  against  Luther  M.  Borden  and  other  defend- 
ants, in  the  circuit  court  of  the  United  States  for  the  district  of 
Rhode  Island,  for  breaking  and  entering  the  plaintiff's  house. 
The  defendants  justify  upon  the  ground  that  large  numbers  of 
men  were  assembled  in  different  parts  of  the  State  for  the  pur- 
pose of  overthrowing  the  government  by  military  force,  and 
were  actually  levying  war  upon  the  State;  that,  in  order  to 
defend  itself  from  this  insurrection,  the  State  was  declared  by 
competent  authority  to  be  under  martial  law;  that  the  plaintiff 
was  engaged  in  the  insurrection;  and  that  the  defendants,  being 
in  the  miUtary  service  of  the  State,  by  command  of  their 
superior  officer,  broke  and  entered  the  house  and  searched  the 
rooms  for  the  plaintiff,  who  was  supposed  to  be  there  concealed, 
in  order  to  arrest  him,  doing  as  little  damage  as  possible.  The 
plaintiff  replied,  that  the  trespass  was  committed  by  the 
defendants  of  their  own  proper  wrong,  and  without  any  such 
^  Supreme  Court  of  the  United  States,  1848.  7  Howard,  i. 


FEDERAL  CONTROL  OF  STATES   349 

cause;  and  upon  the  issue  joined  on  this  repHcation,  the  parties 
proceeded  to  trial.  .  .  .  The  existence  and  authority  of  the 
government  under  which  the  defendants  acted,  was  called  in 
question;  and  the  plaintiff  insists,  that,  before  the  acts  com- 
plained of  were  committed,  that  government  had  been  dis- 
placed and  annulled  by  the  people  of  Rhode  Island,  and  that 
the  plaintiff  was  engaged  in  supporting  the  lawful  authority 
of  the  State,  and  the  defendants  themselves  were  in  arms 
against  it.  .  .  . 

The  fourth  section  of  the  fourth  article  of  the  constitution  of 
the  United  States  provides  that  the  United  States  shall  guar- 
antee to  every  State  in  the  Union  a  republican  form  of  govern- 
ment, and  shall  protect  each  of  them  against  invasion ;  and  on 
the  application  of  the  legislature  or  of  the  executive  (when  the 
legislature  cannot  be  convened)  against  domestic  violence. 

Under  this  article  of  the  constitution  it  rests  with  Congress  to 
decide  what  government  is  the  established  one  in  a  State.  For 
as  the  United  States  guarantee  to  each  State  a  republican 
government,  Congress  must  necessarily  decide  what  govern- 
ment is  estabhshed  in  the  State  before  it  can  determine  whether 
it  is  republican  or  not.  And  when  the  senators  and  represent- 
atives of  a  State  are  admitted  into  the  councils  of  the  Union, 
the  authority  of  the  government  under  which  they  are  ap- 
pointed, as  well  as  its  republican  character,  is  recognized  by 
the  proper  constitutional  authority.  And  its  decision  is  bind- 
ing on  every  other  department  of  the  government,  and  could 
not  be  questioned  in  a  judicial  tribunal.  It  is  true  that  the 
contest  in  this  case  did  not  last  long  enough  to  bring  the  matter 
to  this  issue ;  and  as  no  senators  or  representatives  were  elected 
under  the  authority  of  the  government  of  which  Mr.  Dorr  was  the 
head.  Congress  was  not  called  upon  to  decide  the  controversy. 
Yet  the  right  to  decide  is  placed  there,  and  not  in  the  courts. 

So,  too,  as  relates  to  the  clause  in  the  above-mentioned 
article  of  the  constitution,  providing  for  cases  of  domestic 
violence.  It  rested  with  Congress,  too,  to  determine  upon  the 
means  proper  to  be  adopted  to  fulfill  this  guarantee.  They 
might,  if  they  had  deemed  it  most  advisable  to  do  so,  have 


350  NATION  v.   STATE 

placed  it  in  the  power  of  a  court  to  decide  when  the  contin- 
gency had  happened  which  required  the  federal  government 
to  interfere.  But  Congress  thought  otherwise,  and  no  doubt 
wisely ;  and  by  the  act  of  February  28,  1795,  provided  that,  "in 
case  of  an  insurrection  in  any  State  against  the  government 
thereof,  it  shall  be  lawful  for  the  President  of  the  United  States, 
on  appHcation  of  the  legislature  of  such  State  or  of  the  executive, 
when  the  legislature  cannot  be  convened,  to  call  forth  such  num- 
ber of  militia  of  any  other  State  or  States,  as  may  be  applied 
for,  as  he  may  judge  sufficient  to  suppress  such  insurrection." 

By  this  act,  the  power  of  deciding  whether  the  exigency  had 
arisen  upon  which  the  government  of  the  United  States  is 
bound  to  interfere,  is  given  to  the  President.  He  is  to  act  upon 
the  appHcation  of  the  legislature,  or  of  the  executive,  and 
consequently  he  must  determine  what  body  of  men  constitute 
the  legislature,  and  who  is  the  governor,  before  he  can  act.  The 
fact  that  both  parties  claim  the  right  to  the  government,  can- 
not alter  the  case,  for  both  cannot  be  entitled  to  it.  If  there  is 
an  armed  conflict,  like  the  one  of  which  we  are  speaking,  it  is 
a  case  of  domestic  violence,  and  one  of  the  parties  must  be  in 
insurrection  against  the  lawful  government.  And  the  President 
must,  of  necessity,  decide  which  is  the  government,  and  which 
party  is  unlawfully  arrayed  against  it,  before  he  can  perform 
the  duty  imposed  upon  him  by  the  act  of  Congress. 

After  the  President  has  acted  and  called  out  the  militia,  is  a 
circuit  court  of  the  United  States  authorized  to  inquire  whether 
his  decision  was  right?  Could  the  court,  while  the  parties  were 
actually  contending  in  arms  for  the  possession  of  the  govern- 
ment, call  witnesses  before  it,  and  inquire  which  party  repre- 
sented a  majority  of  the  people?  If  it  could,  then  it  would 
become  the  duty  of  the  court  (provided  it  came  to  the  conclu- 
sion that  the  President  had  decided  incorrectly)  to  discharge 
those  who  were  arrested  or  detained  by  the  troops  in  the  serv- 
ice of  the  United  States,  or  the  government  which  the  Presi- 
dent was  endeavoring  to  maintain.  If  the  judicial  power  ex- 
tends so  far,  the  guarantee  contained  in  the  constitution  of  the 
United  States  is  a  guarantee  of  anarchy,  and  not  of  order.  Yet 


FEDERAL  CONTROL  OF  STATES   351 

if  this  right  does  not  reside  in  the  courts  when  the  conflict  is 
raging  —  if  the  judicial  power  is,  at  that  time,  bound  to  follow 
the  decision  of  the  political,  it  must  be  equally  bound  when  the 
contest  is  over.  It  cannot,  when  peace  is  restored,  punish  as 
offenses  and  crimes  the  acts  which  it  before  recognized,  and  was 
bound  to  recognize,  as  lawful. 

It  is  true  that  in  this  case  the  militia  were  not  called  out  by 
the  President.  But  upon  the  application  of  the  governor  under 
the  charter  government,  the  President  recognized  him  as  the 
executive  power  of  the  State,  and  took  measures  to  call  out  the 
militia  to  support  his  authority,  if  it  should  be  found  necessary 
for  the  general  government  to  interfere;  and  it  is  admitted  in 
the  argument  that  it  was  the  knowledge  of  this  decision  that 
put  an  end  to  the  armed  opposition  to  the  charter  government, 
and  prevented  any  further  efforts  to  establish  by  force  the  pro- 
posed constitution.  The  interference  of  the  President,  there- 
fore, by  announcing  his  determination,  was  as  effectual  as  if 
the  mihtia  had  been  assembled  under  his  orders.  And  it  should 
be  equally  authoritative.  For  certainly  no  court  of  the  United 
States,  with  a  knowledge  of  this  decision,  would  have  been 
justified  in  recognizing  the  opposing  party  as  the  lawful  govern- 
ment, or  in  treating  as  wrong-doers  or  insurgents  the  officers  of 
the  government  which  the  President  had  recognized,  and  was 
prepared  to  support  by  an  armed  force.  In  the  case  of  foreign 
nations,  the  government  acknowledged  by  the  President  is 
always  recognized  in  the  courts  of  justice.  And  this  principle 
has  been  applied  by  the  act  of  Congress  to  the  sovereign  States 
of  the  Union. 

It  is  said  that  this  power  in  the  President  is  dangerous  to 
liberty,  and  may  be  abused.  All  power  may  be  abused  if  placed 
in  unworthy  hands.  But  it  would  be  difficult,  we  think,  to 
point  out  any  other  hands  in  which  this  power  would  be  more 
safe,  and  at  the  same  time  equally  effectual.  When  citizens 
of  the  same  State  are  in  arms  against  each  other,  and  the  con- 
stituted authorities  unable  to  execute  the  laws,  the  interposi- 
tion of  the  United  States  must  be  prompt,  or  it  is  of  little 
value.  The  ordinary  course  of  proceedings  in  courts  of  justice 


352  NATION  V.  STATE 

would  be  utterly  unfit  for  the  crisis.  And  the  elevated  office 
of  the  President,  chosen  as  he  is  by  the  people  of  the  United 
States,  and  the  high  responsibiUty  he  could  not  fail  to  feel  when 
acting  in  a  case  of  so  much  moment,  appear  to  furnish  as  strong 
safeguards  against  a  wilful  abuse  of  power  as  human  prudence 
and  foresight  could  well  provide.  At  all  events,  it  is  conferred 
upon  him  by  the  constitution  and  laws  of  the  United  States, 
and  must,  therefore,  be  respected  and  enforced  in  its  judicial 
tribunals.  .  .  . 

Undoubtedly,  if  the  President,  in  exercising  this  power,  shall 
fall  into  error,  or  invade  the  rights  of  the  people  of  the  State, 
it  would  be  in  the  power  of  Congress  to  apply  the  proper  remedy. 
But  the  courts  must  administer  the  law  as  they  find  it.  .  .  . 

Much  of  the  argument  on  the  part  of  the  plaintiff  turned 
upon  political  rights  and  political  questions,  upon  which  the 
court  has  been  urged  to  express  an  opinion.  We  decline  doing 
so.  The  high  power  has  been  conferred  on  this  court  of  passing 
judgment  upon  the  acts  of  the  state  sovereignties,  and  of  the 
legislative  and  executive  branches  of  the  federal  government, 
and  of  determining  whether  they  are  beyond  the  limits  of  power 
marked  out  for  them  respectively  by  the  constitution  of  the 
United  States.  This  tribunal,  therefore,  should  be  the  last  to 
overstep  the  boundaries  which  limit  its  own  jurisdiction.  And 
while  it  should  always  be  ready  to  meet  any  question  confided 
to  it  by  the  constitution,  it  is  equally  its  duty  not  to  pass 
beyond  its  appropriate  sphere  of  action,  and  to  take  care  not 
to  involve  itself  in  discussions  which  properly  belong  to  other 
forums.  No  one,  we  believe,  has  ever  doubted  the  proposition, 
that,  according  to  the  institutions  of  this  country,  the  sover- 
eignty in  every  State  resides  in  the  people  of  the  State,  and 
that  they  may  alter  and  change  their  form  of  government  at 
their  own  pleasure.  But  whether  they  have  changed  it  or  not, 
by  abolishing  an  old  government,  and  establishing  a  new  one 
in  its  place,  is  a  question  to  be  settled  by  the  political  power. 
And  when  that  power  has  decided,  the  courts  are  bound  to  take 
notice  of  its  decision,  and  to  follow  it. 

The  judgment  oj  the  circuit  court  must,  therefore,  he  affirmed. 


PART   SIX.    THE   NEW   DEMOCRACY 
CHAPTER  XXXIX 

THE    BASIS    OF   THE    NEW   DEMOCRACY 

"Constitutions  are  but  paper;  society  is  the  substratum  of  govern- 
ment," said  Fisher  Ames.  The  earlier  rule  of  the  governing  classes  was 
possible  because  society  recognized  distinctions  and  the  masses  were 
deferential.  The  opening  up  of  the  Western  lands,  however,  weakened 
the  influence  of  the  old  land-owning  class  and  exerted  a  leveling  effect 
upon  society,  East  and  West.  The  demand  everywhere  for  the  removal  of 
all  restrictions  upon  the  suffrage  is  evidence  of  the  democratization  of 
American  society.  The  masses  were  becoming  politically  self-conscious 
and  insisted  upon  a  direct  participation  in  the  work  of  governing. 

1 08.  Social  Conditions  and  their  Political  Consequences} 

.  .  .  The  English  laws  concerning  the  transmission  of  prop- 
erty were  abolished  in  almost  all  the  States  at  the  time  of  the 
Revolution.  The  law  of  entail  was  so  modified  as  not  materially 
to  interrupt  the  free  circulation  of  property.  The  first  genera- 
tion having  passed  away,  estates  began  to  be  parcelled  out; 
and  the  change  became  more  and  more  rapid  with  the  progress 
of  time.  And  now,  after  a  lapse  of  a  little  more  than  sixty 
years,  the  aspect  of  society  is  totally  altered;  the  famihes  of  the 
great  landed  proprietors  are  almost  all  commingled  with  the 
general  mass.  In  the  State  of  New  York,  which  formerly  con- 
tained many  of  these,  there  are  but  two  who  still  keep  their 
heads  above  the  stream;  and  they  must  shortly  disappear.  The 
sons  of  these  opulent  citizens  have  become  merchants,  lawyers, 
or  physicians.  Most  of  them  have  lapsed  into  obscurity.  The 
last  trace  of  hereditary  ranks  and  distinctions  is  destroyed,  — 
the  law  of  partition  has  reduced  all  to  one  level. 

I  do  not  mean  that  there  is  any  lack  of  wealthy  individuals 
in  the  United  States;  I  know  of  no  country,  indeed,  where  the 

*  De  Tocqueville,  Democracy  in  America  (12th  ed.,  trans,  by  Reeve), 
I,  63-67  passim.  The  author  records  observations  which  he  made  in  1831. 


354  THE  NEW  DEMOCRACY 

love  of  money  has  taken  a  stronger  hold  on  the  affections  of 
men,  and  where  a  profounder  contempt  is  expressed  for  the 
theory  of  the  permanent  equahty  of  property.  But  wealth 
circulates  with  inconceivable  rapidity,  and  experience  shows 
that  it  is  rare  to  find  two  succeedmg  generations  in  the  full 
enjoyment  of  it. 

This  picture,  which  may,  perhaps,  be  thought  to  be  over- 
charged, still  gives  a  very  imperfect  idea  of  what  is  taking  place 
in  the  new  States  of  the  West  and  Southwest.  At  the  end  of  the 
last  century,  a  few  bold  adventurers  began  to  penetrate  into 
the  valley  of  the  Mississippi;  and  the  mass  of  the  population 
very  soon  began  to  move  in  that  direction:  communities  un- 
heard of  till  then  suddenly  appeared  in  the  desert.  States 
whose  names  were  not  in  existence  a  few  years  before,  claimed 
their  place  in  the  American  Union ;  and  in  the  Western  settle- 
ments we  may  behold  democracy  arrived  at  its  utmost  Umits. 
In  these  States,  founded  off-hand,  and  as  it  were  by  chance, 
the  inhabitants  are  but  of  yesterday.  Scarcely  known  to  one 
another,  the  nearest  neighbors  are  ignorant  of  each  other's 
history.  In  this  part  of  the  American  continent,  therefore,  the 
population  has  escaped  the  influence  not  only  of  great  names 
and  great  wealth,  but  even  of  the  natural  aristocracy  of  know- 
ledge and  virtue.  None  are  there  able  to  wield  that  respectable 
power  which  men  willingly  grant  to  the  remembrance  of  a  life 
spent  in  doing  good  before  their  eyes.  The  new  States  of  the 
West  are  already  inhabited ;  but  society  has  no  existence  among 
them.  .  .  . 

In  America,  the  aristocratic  element  has  always  been  feeble 
from  its  birth;  and  if  at  the  present  day  it  is  not  actually 
destroyed,  it  is  at  any  rate  so  completely  disabled,  that  we  can 
scarcely  assign  to  it  any  degree  of  influence  on  the  course  of 
affairs. 

The  democratic  principle,  on  the  contrary,  has  gained  so 
much  strength  by  time,  by  events,  and  by  legislation,  as  to 
have  become  not  only  predominant,  but  all-powerful.  There  is 
no  family  or  corporate  authority,  and  it  is  rare  to  find  even  the 
influence  of  individual  character  enjoy  any  durability. 


THE  BASIS  OF  THE  NEW  DEMOCR.\CY   355 

America,  then,  exhibits  in  her  social  state  an  extraordinary 
phenomenon.  Men  are  there  seen  on  a  greater  equahty  in 
point  of  fortune  and  intellect,  or,  in  other  words,  more  equal 
in  their  strength,  than  in  any  other  country  of  the  world,  or  in 
any  age  of  which  history  has  preserved  the  remembrance.  .  .  . 

The  pohtical  consequences  of  such  a  social  condition  as  this 
are  easily  deducible. 

It  is  impossible  to  believe  that  equality  will  not  eventually 
find  its  way  into  the  political  world,  as  it  does  everywhere  else. 
To  conceive  of  men  remaining  forever  unequal  upon  a  single 
point,  yet  equal  on  all  others,  is  impossible;  they  must  come 
in  the  end  to  be  equal  upon  all. 

109.  Sovereignty  of  the  People} 

In  America,  the  principle  of  the  sovereignty  of  the  people 
is  not  either  barren  or  concealed,  as  it  is  with  some  other 
nations;  it  is  recognized  by  the  customs  and  proclaimed  by  the 
laws;  it  spreads  freely,  and  arrives  without  impediment  at  its 
most  remote  consequences.  If  there  be  a  country  in  the  world 
where  the  doctrine  of  the  sovereignty  of  the  people  can  be 
fairly  appreciated,  where  it  can  be  studied  in  its  apphcation 
to  the  affairs  of  society,  and  where  its  dangers  and  its  advan- 
tages may  be  judged,  that  country  is  assuredly  America.  .  .  . 

At  the  present  day  the  principle  of  the  sovereignty  of  the 
people  has  acquired,  in  the  United  States,  all  the  practical 
development  which  the  imagination  can  conceive.  It  is  unen- 
cumbered by  those  fictions  which  are  thrown  over  it  in  other 
countries,  and  it  appears  in  every  possible  form,  according  to 
the  exigency  of  the  occasion.  Sometimes  the  laws  are  made 
by  the  people  in  a  body,  as  at  Athens;  and  sometimes  its 
representatives,  chosen  by  universal  suffrage,  transact  busi- 
ness in  its  name,  and  under  its  immediate  supervision. 

In  some  countries,  a  power  exists  which,  though  it  is  in 
a  degree  foreign  to  the  social  body,  directs  it,  and  forces  it  to 
pursue  a  certain  track.  In  others,  the  ruling  force  is  divided, 
being  partly  within  and  partly  without  the  ranks  of  the  people. 

^  De  Tocqueville,  Democracy  in  America  (12th  ed.),  i,  69-72  passim. 


356  THE  NEW  DEMOCRACY 

But  nothing  of  the  kind  is  to  be  seen  in  the  United  States; 
there  society  governs  itself  for  itself.  All  power  centres  in  its 
bosom;  and  scarcely  an  individual  is  to  be  met  with  who  would 
venture  to  conceive,  or,  still  less,  to  express,  the  idea  of  seeking 
it  elsewhere.  The  nation  participates  in  the  making  of  its  laws 
by  the  choice  of  its  legislators,  and  in  the  execution  of  them  by 
the  choice  of  the  agents  of  the  executive  government ;  it  may 
almost  be  said  to  govern  itself,  so  feeble  and  so  restricted  is  the 
share  left  to  the  administration,  so  Httle  do  the  authorities  for- 
get their  popular  origin  and  the  power  from  which  they  eman- 
ate. The  people  reign  in  the  American  political  world  as  the 
Deity  does  in  the  universe.  They  are  the  cause  and  the  aim  of 
all  things;  everything  comes  from  them,  and  everything  is 
absorbed  in  them. 

no.  Chancellor  Kent  on  Universal  Suffrage.^ 

The  senate  has  hitherto  been  elected  by  the  farmers  of  the 
state  —  by  the  free  and  independent  lords  of  the  soil,  worth  at 
least  $250  in  freehold  estate,  over  and  above  all  debts  charged 
thereon.  The  governor  has  been  chosen  by  the  same  electors, 
and  we  have  hitherto  elected  citizens  of  elevated  rank  and 
character.  Our  assembly  has  been  chosen  by  freeholders,  pos- 
sessing a  freehold  of  the  value  of  $50,  or  by  persons  renting  a 
tenement  of  the  yearly  value  of  $5,  and  who  have  been  rated  and 
actually  paid  taxes  to  the  state.  By  the  report  before  us,  we 
propose  to  annihilate,  at  one  stroke,  all  those  property  distinc- 
tions and  to  bow  before  the  idol  of  universal  suffrage.  That 
extreme  democratic  principle,  when  applied  to  the  legislative 
and  executive  departments  of  government,  has  been  regarded 
with  terror,  by  the  wise  men  of  every  age,  because  in  every 
European  republic,  ancient  and  modern,  in  which  it  has  been 
tried,  it  has  terminated  disastrously,  and  been  productive  of 
corruption,  injustice,  violence,  and  tyranny.  And  dare  we 
flatter  ourselves  that  we  are  a  pecuHar  people,  who  can  run  the 
career  of  history,  exempted  from  the  passions  which  have  dis- 

^  New  York  Convention  of  182 1,  Reports  of  the  Proceedings  and  Debates, 
219-22  passim. 


THE  BASIS  OF  THE  NEW  DEMOCRACY   357 

turbed  and  corrupted  the  rest  of  mankind?  If  we  are  like  other 
races  of  men,  with  similar  follies  and  vices,  then  I  greatly  fear 
that  our  posterity  will  have  reason  to  deplore  in  sackcloth  and 
ashes,  the  delusion  of  the  day. 

It  is  not  my  purpose  at  present  to  interfere  with  the  report 
of  the  committee,  so  far  as  respects  the  quahfications  of  electors 
for  governor  and  members  of  assembly.  I  shall  feel  grateful  if 
we  may  be  permitted  to  retain  the  stability  and  security  of  a 
senate,  bottomed  upon  the  freehold  property  of  the  state.  Such 
a  body,  so  constituted,  may  prove  a  sheet  anchor  amidst  the 
future  factions  and  storms  of  the  republic.  The  great  leading 
and  governing  interest  of  this  state,  is,  at  present,  the  agricul- 
tural ;  and  what  madness  would  it  be  to  commit  that  interest 
to  the  winds.  The  great  body  of  the  people,  are  now  the  owners 
and  actual  cultivators  of  the  soil.  With  that  wholesome  popu- 
lation we  always  expect  to  find  moderation,  frugality,  order, 
honesty,  and  a  due  sense  of  independence,  Uberty,  and  justice. 
It  is  impossible  that  any  people  can  lose  their  liberties  by  in- 
ternal fraud  or  violence,  so  long  as  the  country  is  parcelled  out 
among  freeholders  of  moderate  possessions,  and  those  free- 
holders have  a  sure  and  efficient  control  in  the  affairs  of  the 
government.  Their  habits,  sympathies,  and  employments, 
necessarily  inspire  them  with  a  correct  spirit  of  freedom  and 
justice;  they  are  the  safest  guardians  of  property  and  the  laws: 
We  certainly  cannot  too  highly  appreciate  the  value  of  the 
agricultural  interest:  It  is  the  foundation  of  national  wealth 
and  power.  According  to  the  opinion  of  her  ablest  pohtical 
economists,  it  is  the  surplus  produce  of  the  agriculture  of  Eng- 
land, that  enables  her  to  support  her  vast  body  of  manufactur- 
ers, her  formidable  fleets  and  armies,  and  the  crowds  of  persons 
engaged  in  the  liberal  professions,  and  the  cultivation  of  the 
various  arts. 

Now,  sir,  I  wish  to  preserve  our  senate  as  the  representative 
of  the  landed  interest.  I  wish  those  who  have  an  interest  in  the 
soil,  to  retain  the  exclusive  possession  of  a  branch  in  the  legis- 
lature, as  a  strong  hold  in  which  they  may  find  safety  through 
all  the  vicissitudes  which  the  state  may  be  destined,  in  the 


358  THE  NEW  DEMOCRACY 

course  of  Providence,  to  experience.  I  wish  them  to  be  always 
enabled  to  say  that  their  freeholds  cannot  be  taxed  without 
their  consent.  The  men  of  no  property,  together  with  the  crowds 
of  dependants  connected  with  great  manufacturing  and  com- 
mercial establishments,  and  the  motley  and  undefinable  popu- 
lation of  crowded  ports,  may,  perhaps,  at  some  future  day, 
under  skillful  management,  predominate  in  the  assembly,  and 
yet  we  should  be  perfectly  safe  if  no  laws  could  pass  without 
the  free  consent  of  the  owners  of  the  soil.  That  security  we  at 
present  enjoy;  and  it  is  that  security  which  I  wish  to  retain. 

The  apprehended  danger  from  the  experiment  of  universal 
suffrage  appKed  to  the  whole  legislative  department,  is  no 
dream  of  the  imagination.  It  is  too  mighty  an  excitement  for 
the  moral  constitution  of  men  to  endure.  The  tendency  of 
universal  suffrage,  is  to  jeopardize  the  rights  of  property,  and 
the  principles  of  Uberty.  There  is  a  constant  tendency  in  human 
society,  and  the  history  of  every  age  proves  it ;  there  is  a  tend- 
ency in  the  poor  to  covet  and  to  share  the  plunder  of  the  rich; 
in  the  debtor  to  relax  or  avoid  the  obligation  of  contracts;  in 
the  majority  to  tyrannize  over  the  minority,  and  trample  down 
their  rights ;  in  the  indolent  and  the  profligate,  to  cast  the  whole 
burthens  of  society  upon  the  industrious  and  the  virtuous;  and 
there  is  a  tendency  in  ambitious  and  wicked  men,  to  inflame  these 
combustible  materials.  It  requires  a  vigilant  government,  and 
a  firm  administration  of  justice,  to  counteract  that  tendency. 
Thou  shalt  not  covet;  thou  shalt  not  steal;  are  divine  injunc- 
tions induced  by  this  miserable  depravity  of  our  nature.  .  .  . 

The  growth  of  the  city  of  New- York  is  enough  to  startle 
and  awaken  those  who  are  pursuing  the  ignis  Jatuus  of  uni- 
versal suffrage.  .  .  . 

It  is  rapidly  swelling  into  the  unwieldly  population,  and 
with  the  burdensome  pauperism,  of  an  European  metropolis. 
New- York  is  destined  to  become  the  future  London  of  America; 
and  in  less  than  a  century,  that  city,  with  the  operation  of  uni- 
versal suffrage,  and  under  skilful  direction,  will  govern  this 
state. 

The  notion  that  every  man  that  works  a  day  on  the  road, 


THE  BASIS  OF  THE  NEW  DEMOCRACY   359 

or  serves  an  idle  hour  in  the  militia,  is  entitled  as  of  right  to 
an  equal  participation  in  the  whole  power  of  the  government, 
is  most  unreasonable,  and  has  no  foundation  in  justice.  We 
had  better  at  once  discard  from  the  report  such  a  nominal  test 
of  merit.  If  such  persons  have  an  equal  share  in  one  branch  of 
the  legislature,  it  is  surely  as  much  as  they  can  in  justice  or 
policy  demand.  Society  is  an  association  for  the  protection  of 
property  as  well  as  of  life,  and  the  individual  who  contributes 
only  one  cent  to  the  common  stock,  ought  not  to  have  the  same 
power  and  influence  in  directing  the  property  concerns  of  the 
partnership,  as  he  who  contributes  his  thousands.  He  will  not 
have  the  same  inducements  to  care,  and  diHgence,  and  fidelity. 
His  inducements  and  his  temptation  would  be  to  divide  the 
whole  capital  upon  the  principles  of  an  agrarian  law. 

Liberty,  rightly  understood,  is  an  inestimable  blessing,  but 
liberty  without  wisdom,  and  without  justice,  is  no  better  than 
wild  and  savage  licentiousness.  The  danger  which  we  have 
hereafter  to  apprehend,  is  not  the  want,  but  the  abuse,  of  lib- 
erty. We  have  to  apprehend  the  oppression  of  minorities, 
and  a  disposition  to  encroach  on  private  right  —  to  disturb 
chartered  privileges  —  and  to  weaken,  degrade,  and  overawe 
the  administration  of  justice;  we  have  to  apprehend  the  es- 
tablishment of  unequal,  and  consequently,  unjust  systems 
of  taxation,  and  all  the  mischiefs  of  a  crude  and  mutable 
legislation.  A  stable  senate,  exempted  from  the  influence  of 
universal  suffrage,  will  powerfully  check  these  dangerous  pro- 
pensities, and  such  a  check  becomes  the  more  necessary,  since 
this  Convention  has  already  determined  to  withdraw  the 
watchful  eye  of  the  judicial  department  from  the  passage  of 
laws. 

We  are  destined  to  become  a  great  manufacturing  as  well 
as  commercial  state.  We  have  already  numerous  and  prosper- 
ous factories  of  one  kind  or  another,  and  one  master  capitalist 
with  his  one  hundred  apprentices,  and  journeymen,  and  agents, 
and  dependents,  will  bear  down  at  the  polls  an  equal  number 
of  farmers  of  small  estates  in  his  vicinity,  who  cannot  safely 
unite  for  their  common  defence.    Large  manufacturing  and 


36o  THE  NEW  DEMOCRACY 

mechanical  establishments,  can  act  in  an  instant  with  the 
unity  and  efficacy  of  disciplined  troops.  It  is  against  such  com- 
binations, among  others,  that  I  think  we  ought  to  give  to  the 
freeholders,  or  those  who  have  interest  in  land,  one  branch  of 
the  legislature  for  their  asylum  and  their  comfort.  Universal 
suffrage  once  granted,  is  granted  forever,  and  never  can  be 
recalled.  There  is  no  retrograde  step  in  the  rear  of  democracy. 
However  mischievous  the  precedent  may  be  in  its  consequences, 
or  however  fatal  in  its  effects,  universal  suffrage  never  can  be 
recalled  or  checked,  but  by  the  strength  of  the  bayonet.  We 
stand,  therefore,  this  moment,  on  the  brink  of  fate,  on  the  very 
edge  of  the  precipice.  If  we  let  go  our  present  hold  on  the 
senate,  we  commit  our  proudest  hopes  and  our  most  precious 
interests  to  the  waves. 

III.  Property  not  the  True  Basis  of  Representation} 

When  our  constitution  was  framed,  the  domain  of  the  state 
was  in  the  hands  of  a  few.  The  proprietors  of  the  great  manors 
were  almost  the  only  men  of  great  influence;  and  the  landed 
property  was  deemed  worthy  of  almost  exclusive  consideration. 
Before  the  revolution,  freeholders  only  were  allowed  to  exer- 
cise the  right  of  suffrage.  The  notions  of  our  ancestors,  in 
regard  to  real  property,  were  all  derived  from  England.  The 
feudal  tenures  were  universally  adopted.  The  law  of  primo- 
geniture, by  which  estates  descended  to  the  eldest  son,  and  the 
rule  of  descent  by  which  the  male  branches  inherited  the 
paternal  estate,  to  the  exclusion  of  the  female,  entails,  and 
many  other  provisions  of  feudal  origin  were  in  force.  The 
tendency  of  this  system,  it  is  well  understood,  was  to  keep  the 
lands  of  the  state  in  few  hands.  But  since  that  period,  by  the 
operation  of  wiser  laws,  and  by  the  prevalence  of  juster  prin- 
ciples, an  entire  revolution  has  taken  place  in  regard  to  real 
property.  Our  laws  for  regulating  descents,  and  for  converting 
entailed  estates  into  fee-simple,  have  gradually  increased  the 
number  of  landholders :  Our  territory  has  been  rapidly  divided 

^  New  York  Convention  of  182 1,  Reports  of  the  Proceedings  and  Debates, 
241-44  passim. 


THE  BASIS  OF  THE  NEW  DEMOCRACY   361 

and  subdivided:  And  although  the  landed  interest  is  no  longer 
controlled  by  the  influence  of  a  few  great  proprietors,  its  ag- 
gregate importance  is  vastly  increased,  and  almost  the  whole 
community  have  become  interested  in  its  protection.  In  New- 
England,  the  inhabitants,  from  the  earliest  period,  have  en- 
joyed the  system  which  we  are  progressively  attaining  to. 
There,  the  property  of  the  soil  has  always  been  in  the  hands 
of  the  many.  The  great  bulk  of  the  population  are  farmers  and 
freeholders,  yet  no  provision  is  incorporated  in  their  constitu- 
tions, excluding  those  who  are  not  freeholders  from  a  full  par- 
ticipation in  the  right  of  suffrage.  May  we  not  trace  the  notions 
of  the  framers  of  our  constitution,  respecting  the  exclusive 
privilege  of  the  freeholders,  to  the  same  source  from  whence 
they  derived  all  their  ideas  of  real  property?  .  .  . 

I  contend,  that  by  the  true  principle  of  our  government, 
property,  as  such,  is  not  the  basis  of  representation.  Our  com- 
m_unity  is  an  association  of  persons  —  of  human  beings  —  not 
a  partnership  founded  on  property.  The  declared  object  of 
the  people  of  this  state  in  associating,  was,  to  "establish  such 
a  government  as  they  deemed  best  calculated  to  secure  the 
rights  and  Hberties  of  the  good  people  of  the  state,  and  most 
conducive  to  their  happiness  and  safety."  Property,  it  is 
admitted,  is  one  of  the  rights  to  be  protected  and  secured;  and 
although  the  protection  of  hfe  and  liberty  is  the  highest  object 
of  attention,  it  is  certainly  true,  that  the  security  of  property 
is  a  most  interesting  and  important  object  in  every  free  govern- 
ment. Property  is  essential  to  our  temporal  happiness;  and  is 
necessarily  one  of  the  most  interesting  subjects  of  legislation. 
The  desire  of  acquiring  property  is  a  universal  passion.  I 
readily  give  to  property  the  important  place  which  has  been 
assigned  to  it  by  the  honourable  member  from  Albany  (Chan- 
cellor Kent.)  To  property  we  are  indebted  for  most  of  our 
comforts,  and  for  much  of  our  temporal  happiness.  The  num- 
erous religious,  moral,  and  benevolent  institutions  which  are 
everywhere  established,  owe  their  existence  to  wealth  ;  and 
it  is  wealth  which  enables  us  to  make  those  great  internal 
improvements  which  we  have  undertaken.   Property  is  only 


362  THE  NEW  DEMOCRACY 

one  of  the  incidental  rights  of  the  person  who  possesses  it;  and, 
as  such,  it  must  be  made  secure;  but  it  does  not  follow,  that 
it  must  therefore  be  represented  specifically  in  any  branch  of 
the  government.  It  ought,  indeed,  to  have  an  influence  —  and 
it  ever  will  have,  when  properly  enjoyed.  So  ought  talents  to 
have  an  influence.  It  is  certainly  as  important  to  have  men  of 
good  talents  in  your  legislature,  as  to  have  men  of  property; 
but  you  surely  would  not  set  up  men  of  talents  as  a  separate 
order,  and  give  them  exclusive  privileges. 

The  truth  is,  that  both  wealth  and  talents  will  ever  have  a 
great  influence;  and  without  the  aid  of  exclusive  privileges, 
you  will  always  find  the  influence  of  both  wealth  and  talents 
predominant  in  our  halls  of  legislation. 


CHAPTER  XL 

CONSTITUTIONAL    CHANGES    IN   THE   STATES 

The  constitutions  of  the  new  States,  which  were  formed  out  of  the  pub- 
lic domain  during  the  two  decades  following  the  War  of  1812,  bear  witness 
to  the  democratic  tendencies  of  frontier  communities.  In  contrast  to  the 
constitutions  of  the  Revolutionary  period,  two  tendencies  appear:  first, 
a  disposition  to  remove  all  obstacles  from  the  path  of  popular  sovereignty; 
and  secondly,  a  determination  to  strengthen  and  expand  the  executive  at 
the  expense  of  the  legislative  power.  The  reaction  of  Western  democracy 
upon  the  older  States  led  to  similar  changes  in  their  constitutions.  By 
the  middle  of  the  century  a  third  tendency  appears:  to  make  the  judiciary 
also  dependent  upon  the  popular  will  by  election. 

112.  Veto  Power  of  the  Governor.^ 

In  a  free  representative  government  there  is  a  strong  and 
natural  tendency  to  excessive  legislation.  That  department 
must  be  composed  of  a  very  numerous  body  of  men.  In  general 
we  may  hope,  that  they  will  possess  sound  and  upright  inten- 
tions; but  a  majority  of  them  will  probably  possess  little  expe- 
rience in  framing  laws :  and  the  nature  of  man,  and  our  own 
experience  shew,  that  men,  suddenly  elevated  to  power,  have 
a  natural  proneness  to  use  their  power  immoderately.  Our 
state,  in  common  with  others,  has  from  time  to  time  had  many 
bold  and  rude  reformers;  who  see  evils  and  disorders  all  around 
them,  in  whatever  does  not  accord  with  their  own  narrow  views 
of  public  policy;  and  who  often  apply  remedies  with  so  unskil- 
ful a  hand,  and  with  so  little  wisdom  and  circumspection,  that 
in  curing  one  evil,  they  create  many  others.  Such  an  inexperi- 
enced lawgiver  has  his  eye  intently  fixed  on  some  particular 
mischief  which  he  supposes  to  exist,  and  then,  wnth  a  strong 
hand  he  extirpates  that  evil;  but  in  doing  so  he  often  throws 
down  the  fences  erected  for  the  security  of  private  rights. 
Almost  every  man  who  comes  to  the  legislature  seems  to  sup- 

1  Judge  Piatt  in  the  New  York  Convention  of  182 1,  Reports  of  Proceed- 
ings and  Debates,  52-53. 


364  THE  NEW  DEMOCRACY 

pose  that  he  is  boiind  to  do  something;  and  this  propensity  is 
so  strong,  that  it  is  often  excited  into  a  passion  and  a  rage.  All 
change  in  the  public  laws  of  the  state  is  in  itself  an  evil.  It 
renders  the  rule  of  action  for  a  time  unknown  or  uncertain. 
The  stability  of  laws  inspires  confidence;  and  the  success  of  all 
our  prospective  plans  in  the  various  business  of  life  must 
essentially  depend  on  that  stability.  Fickle  caprice  is  the  law  of 
a  tyrant's  will ;  and  in  proportion  as  our  laws  are  unstable,  they 
partake  of  that  characteristic  feature  of  tyranny. 

Besides,  sir,  it  is  not  to  be  disguised,  that  we  are  at  all  times 
exposed  to  the  arts  and  desigrs  of  ambitious  demagogues,  to 
selfish  intriguers,  who  speculate  on  the  public  bounty,  through 
m.eans  of  party  favouritism;  and  to  that  esprit  de  corps,  which 
under  strong  party  excitement,  often  infests  with  contagious 
influence,  all  who  are  within  its  immediate  atmosphere.  The 
pride  of  our  nature  is  often  humbled,  when  we  see  men,  who  in 
their  private  Hfe  and  character  are  deserving  of  all  our  confi- 
dence and  esteem;  yet,  when  associated  in  large  assemblies, 
and  inflamed  with  party  zeal,  are  induced  to  commit  intem- 
p3rate  acts  of  outrage  and  violence  under  the  false  pleas  of 
public  necessity,  or  of  retaliation  and  self-defence  —  acts,  of 
which  any  one  of  them,  in  a  moment  of  calm  reflection,  would 
blush  to  think  himself  capable. 

These,  sir,  are  some  of  the  infirmities  and  vices  inherent  in 
our  form  of  government ;  and  so  long  as  man  continues  imper- 
fect and  depraved,  these  evils  must  ever  attend  the  many 
blessings  which  we  enjoy  under  our  happy  republic.  But  while 
this  truth  admonishes  that  perfection  is  unattainable  in  any 
human  device;  it  solemnly  warns  us  on  this  occasion,  to  retain 
or  provide  every  suitable  check  and  guard  against  those  evils ;  so 
far  as  human  sagacity  and  wisdom  can  discern  and  prevent  them. 

On  this  subject,  sir,  it  is  important  to  realize  the  distinction 
between  the  actual  powers  of  legislation,  and  a  mere  negative 
veto.  The  power  of  making  or  altering  the  law  ought  unques- 
tionably to  be  confided  to  the  two  houses  of  the  legislature 
exclusively.  That  power  expands  itself  to  all  objects  not  for- 
bidden by  the  constitution,  or  the  fundamental  and  universal 


CONSTITUTIONAL  CHANGES  IN  STATES  365 

principles  of  justice.  —  Such  vast  powers  are  obviously  liable 
to  great  abuse;  and  if  abused,  the  injurious  effects  are  perman- 
ent; and  in  a  great  measure  incurable.  If  the  legislature  pass 
a  law  which  is  unconstitutional,  the  judicial  tribunals,  if  the 
case  be  regularly  presented  to  them,  will  declare  it  null  and 
void.  But  in  many  cases,  a  long  time  elapses  between  the 
passing  of  the  act,  and  the  judicial  interpretation  of  it;  and 
what,  let  me  ask,  is  the  condition  of  the  people  during  that 
interval?  Who,  in  such  a  case,  can  safely  regulate  his  conduct? 
In  many  cases  a  person  is  compelled  to  act  in  reference  to  such  a 
statute,  while  he  is  necessarily  involved  in  doubt  as  to  its  validity. 
But  where  the  legislature  abuse  their  discretion,  on  ques- 
tions of  expediency  merely,  the  mischief  is  often  still  worse. 
In  all  cases  of  private  acts,  which  comprize  three  fourths  of  our 
statute  book,  the  evil  of  an  improvident  act  is  incurable, 
because  it  usually  vests  private  rights  in  individuals  or  corpora- 
tions which  no  power  under  the  government  can  afterwards 
repeal  or  annul.  No  matter  how  unequal,  unwise,  or  inconven- 
ient, such  laws  must  be  carried  into  effect.  Fieri  non  debet; 
factum  valet. 

But  in  regard  to  the  evils  which  might  by  possibility  flow 
from  the  improper  exercise  of  the  qualified  veto  on  the  legisla- 
ture, they  are  very  limited  in  their  effects,  and  of  far  less 
dangerous  character.  The  council  of  revision,  or  the  executive 
holding  this  check,  can  originate  no  bill,  nor  make  nor  alter 
any  law.  The  effect  of  the  objections  where  they  prevail,  can 
only  produce  the  result  of  suspending  the  legislative  will  of  the 
two  houses.  And  the  worst  consequence  which  can  ordinarily 
happen,  is,  that  the  people  must  remain  under  the  law  as  it 
stood;  until  the  voice  of  the  people,  through  their  new  repre- 
sentatives, shall  produce  a  change. 

113.  The  Governor  as  ''the  Man  of  the  People."  ^ 

I  have  long  been  sensible,  in  common  with  a  large  class  of 
the  community,  that  we  have  too  much  legislation.  It  renders 

1  Ogden  Edwards  in  the  New  York  Convention  of  182 1,  Reports  of 
Proceedings  and  Debates,  60-61. 


366  THE  NEW  DEMOCRACY 

the  law  unstable,  and  it  requires  a  good  lawyer  to  keep  pace 
with  the  construction  it  receives.  All  that  the  governor  can 
say,  when  vested  with  the  powers  contemplated  by  the  com- 
mittee, is  —  stay  your  hand.  If  gentlemen  are  afraid  that 
we  shall  not  have  law  enough,  let  them  go  to  the  lawyers' 
shelves  and  tables  that  groan  beneath  the  burden.  An  erro- 
neous idea  seems  to  have  prevailed  in  relation  to  the  powers 
and  origin  of  the  governor.  Who  is  he?  and  by  whom  is  he 
appointed?  Does  he  derive  his  authority  from  the  king  of 
Great  Britain?  Is  he  an  usurper?  If  so,  let  us  unite  to  depose 
him.  But,  sir,  he  is  the  man  of  the  people  —  elected  by  their 
suffrage,  and  identified  with  their  interests.  He  is  a  watchful 
sentinel  to  guard  us  from  evil,  and  a  zealous  friend  to  admonish 
us  of  error.  Much  has  been  said  respecting  the  necessity  of 
keeping  separate  the  different  branches  of  the  government.  I 
yield  a  cordial  acquiescence  to  the  principle.  But  if  we  content 
ourselves  with  parchment  regulations  —  if  nothing  more 
effectual  is  done  than  to  authorize  the  governor  to  recommend 
a  reconsideration  of  the  bills  that  are  passed,  it  is  easy  to  per- 
ceive that  the  weaker  power  will  be  trodden  down  by  the 
stronger,  and  that  the  executive  has  become  a  cj^^her  before 
the  representatives  of  the  people.  On  this,  as  on  all  other 
subjects,  however,  I  have  but  one  object  in  view.  That  object 
is  to  endeavour  that  the  agents  of  the  public  are  so  guarded, 
checked,  and  controled,  that  the  people  may  lie  down  and  rest 
in  security,  with  the  consciousness  that  their  rights  will  be  pro- 
tected. 

114.  Political  Power  of  the  Judiciary.^ 

The  Americans  have  retained  these  three  distinguishing 
characteristics  of  the  judicial  power:  an  American  judge  can 
only  pronounce  a  decision  when  litigation  has  arisen,  he  is 
conversant  only  with  special  cases,  and  he  cannot  act  until  the 
cause  has  been  duly  brought  before  the  court.  His  position  is, 
therefore,  perfectly  similar  to  that  of  the  magistrates  of  other 
nations;  and  yet  he  is  invested  with  immense  political  power. 

*  De  Tocqueville,  Democracy  in  America  (12th  ed.),  i,  125-30. 


CONSTITUTIONAL  CPIANGES  IN  STATES    367 

How  comes  that  about?  If  the  sphere  of  his  authority  and  his 
means  of  action  are  the  same  as  those  of  other  judges,  whence 
does  he  derive  a  power  which  they  do  not  possess?  The  cause 
of  this  difference  Hes  in  the  simple  fact,  that  the  Americans 
have  acknowledged  the  right  of  the  judges  to  found  their 
decisions  on  the  Constitution  rather  than  on  the  laws.  In  other 
words,  they  have  not  permitted  them  to  apply  such  laws  as  may 
appear  to  them  to  be  unconstitutional.  .  .  . 

Whenever  a  law  which  the  judge  holds  to  be  unconstitu- 
tional is  invoked  in  a  tribunal  of  the  United  States,  he  may 
refuse  to  admit  it  as  a  rule;  this  power  is  the  only  one  which  is 
peculiar  to  the  American  magistrate,  but  it  gives  rise  to 
immense  political  influence.  In  truth,  few  laws  can  escape  the 
searching  analysis  of  the  judicial  power  for  any  length  of  time, 
for  there  are  few  which  are  not  prejudicial  to  some  private 
interest  or  other,  and  none  which  may  not  be  brought  before  a 
court  of  justice  by  the  choice  of  parties,  or  by  the  necessity 
of  the  case.  But  as  soon  as  a  judge  has  refused  to  apply  any 
given  law  in  a  case,  that  law  immediately  loses  a  portion  of  its 
moral  force.  Those  to  whom  it  is  prejudicial  learn  that  means  ex- 
ist of  overcoming  its  authority ;  and  similar  suits  are  multiplied, 
until  it  becomes  powerless.  The  alternative,  then,  is,  that  the 
people  must  alter  the  constitution,  or  the  legislature  must  repeal 
the  law.  Thepolitical  power  which  the  Americans  have  intrusted 
to  their  courts  of  justice  is  therefore  immense;  but  the  evils  of 
this  power  are  considerably  diminished  by  the  impossibility  of 
attacking  the  laws  except  through  the  courts  of  justice.  .  .  . 

Within  these  hmits,  the  power  vested  in  the  American  courts 
of  justice,  of  pronouncing  a  statute  to  be  unconstitutional, 
forms  one  of  the  most  powerful  barriers  which  has  ever  been 
devised  against  the  tyranny  of  political  assemblies. 

115.  Popular  Election  of  the  Judiciary.^ 

Now,  sir,  this  question  of  electing  judges  by  the  people 
seems  to  have  taken  some  gentlemen  by  surprise.   I  recollect 

^  Debates  and  Proceedings  of  the  Maryland  Reform  Convention  (1851), 
n,  46 1-^4  passim. 


368  THE  NEW  DEMOCR.\CY 

the  time  very  well  when  it  was  considered  a  radical  proposition. 
I  recollect  the  time  very  well  when,  perhaps,  you  could  not 
find  one  man  in  twenty  who  thought  that  the  judges  should  be 
elected  by  the  people.  But  I  have  lived  to  see  the  day  when  I 
find  not  over  one  in  twenty  who  is  opposed  to  it.  If  there  is 
any  subject  at  all  upon  which,  more  than  any  other,  the  pop- 
ular mind  has  undergone  a  change,  in  my  judgment,  it  is  this 
in  regard  to  the  election  of  judges  by  the  people.  .  .  . 

Sir,  the  question  is  one  simply  of  expediency  —  whether  the 
people  shall  be  reunited  to  their  original  rights  or  not?  Whether 
the  power  shall  be  given  to  them,  not  for  the  first  time,  for  this 
I  think  was  settled  by  the  Revolution,  but  as  a  reversionary 
right  to  which  they  have  just  claims  of  inheritance.  They  do 
not  ask  for  power  which  they  never  possessed  before,  for  they 
had  it  by  the  Bill  of  Rights,  of  1776,  and  by  the  Constitution 
of  1776,  they  granted  it  to  subordinate  agents.  That  Constitu- 
tion being  about  to  expire,  these  powers  necessarily  went  to 
the  people,  their  original  and  rightful  owners.  In  the  great 
trial  which  was  then  to  be  made  —  this  experiment  of  self- 
government  —  the  people  were  induced  to  part  with  this 
power.  They  incorporated  as  a  provision  in  the  Constitution 
of  1776,  that  the  Governor  and  the  Council  should  have  the 
appointment  of  judges,  chancellor,  and  all  judicial  oflScers. 
Sir,  this  was  a  grant  of  power  —  a  relinquishment  of  their  own 
rights  and  interests  to  mere  subordinate  agents.  .  .  . 

We  have  confided  to  you,  the  Governor  and  Council,  or  you 
the  Governor  and  Senate,  this  power  of  appointment  for  wise, 
wholesome,  and  good  purposes.  We  expected  that  in  the  execu- 
tion of  this  power,  you  would  look  alone  to  the  common  good 
of  the  people  of  the  State.  How  have  you  exercised  the  power? 
In  the  appointment  of  judges,  have  you  made  the  interests  of 
the  people  your  great  polar  star  to  guide  you?  No.  It  has 
become  a  mere  political  machine  in  the  hands  of  the  Governor 
and  his  friends,  the  Governor  and  the  Senate,  and  their  friends. 
It  is  made  a  great  political  engine,  by  which  the  interests  of  a 
large  portion  of  the  people  of  the  State  have  been  sacrificed 
for  the  elevation  of  others.  You  have  not  always  looked  alone 


CONSTITUTIONAL  CHANGES  IN  STATES  369 

to  the  legal  attainments  and  uprightness  of  the  men  you  have 
put  upon  the  bench.  You  have  not  always  looked  to  their 
integrity  of  character,  their  honesty,  their  capability,  and  the 
standing  which  they  ought  to  have  by  reason  of  their  \drtues; 
you  have  selected,  in  many  cases,  mere  partisan  adherents  to 
certain  poHtical  creeds.  I  am  now  using  language  which  the 
people  have  a  right  to  use  to  those  subordinate  agents,  who 
have  heretofore  had  the  exercise  of  this  power.  .  .  . 

I  will  trust  the  people,  because  I  believe  that  they  will  select 
wise  and  good  and  honest  judges.  To  fill  the  station  of  a  judge, 
we  want  a  man  who  has  a  clear  head  and  an  honest  heart.  I 
care  not  whether  he  be  a  Demosthenes  or  a  Cicero  —  whether 
his  imagination  can  soar  among  the  clouds,  or  play  with  the 
thunders,  and  storms,  and  lightnings,  or  not.  I  want  a  man  of 
good,  sound  sense,  calm,  deliberate  judgment,  and,  above  all, 
a  man  of  integrity.  These  are  the  men  that  the  people  will 
elect  for  their  judges  —  these  are  not  the  men  that  the  Gov- 
ernor and  Senate  have  usually  looked  for.  .  .  . 

If  we  refuse  to  confide  the  power  of  appointment  to  the 
people,  we  violate  the  great  and  fundamental  principle  which 
we  have  professed  to  venerate  from  our  cradles  up  to  manhood 
—  I  mean  the  right  of  the  people  to  govern  themselves  —  a 
principle  to  be  forever  held  sacred  by  every  true  friend  of 
republican  government. 


CHAPTER  XLI 

PRESIDENT  AND    CONGRESS:  THE   VETO   POWER 

Before  the  administration  of  Andrew  Jackson,  the  veto  power  had 
been  exercised  only  nine  times.  The  earUer  Presidents,  as  the  Federalist 
anticipated,  were  disposed  to  use  the  veto  with  caution,  not  wishing  to 
put  themselves  into  opposition  to  the  well-considered  purposes  of  Con- 
gress, except  in  those  instances  when  Congress  seemed  to  have  exceeded 
its  constitutional  powers.  President  Jackson  was  deterred  by  no  such 
scruples.  By  his  veto  messages,  notably  by  his  veto  of  the  Bank  Bill,  he 
put  himself  squarely  athwart  the  will  of  Congress.  Not  once  only,  but 
twelve  times  he  exercised  what  one  of  his  cabinet  oflScers  styled  "the 
people's  tribunative  prerogative."  The  protest  of  Henry  Clay  against 
the  veto  was  occasioned  by  President  Tyler's  rejection  of  successive  bills 
for  the  establishment  of  a  new  national  bank.  There  is  no  evidence  that 
Clay's  proposed  amendment  of  the  Constitution  commanded  popular 
support.  On  the  contrary.  President  Polk's  vigorous  assertion  of  the  repre- 
sentative character  of  the  presidential  office  indicates  that  the  public 
mind  had  acquiesced  in  the  precedent  set  by  Jackson. 

ii6.  President  J ackson'' s  Bank  Veto} 

...  A  Bank  of  the  United  States  is,  in  many  respects,  con- 
venient for  the  Government,  and  useful  to  the  people.  Enter- 
taining this  opinion,  and  deeply  impressed  with  the  belief  that 
some  of  the  powers  and  privileges  possessed  by  the  existing 
bank  are  unauthorized  by  the  constitution,  subversive  of  the 
rights  of  the  States,  and  dangerous  to  the  Hberties  of  the  people, 
I  felt  it  my  duty,  at  an  early  period  of  my  administration,  to 
call  the  attention  of  Congress  to  the  practicability  of  organiz- 
ing an  institution  combining  all  its  advantages,  and  obviating 
these  objections.  I  sincerely  regret,  that,  in  the  act  before  me, 
I  can  perceive  none  of  those  modifications  of  the  bank  charter 
which  are  necessary,  in  my  opinion,  to  make  it  compatible  with 
justice,  with  sound  policy,  or  with  the  constitution  of  our 
country.  ... 

The  modifications  of  the  existing  charter,  proposed  by  this 

'  Richardson,  Messages  and  Papers  of  the  Presidents,  ii,  576-91  passim. 
July  10,  1832. 


PRESIDENT  AND  CONGRESS  371 

act,  are  not  such,  in  my  view,  as  make  it  consistent  with  the 
rights  of  the  States  or  the  liberties  of  the  people.  The  quahfi- 
cation  of  the  right  of  the  bank  to  hold  real  estate,  the  Umitation 
of  its  power  to  establish  branches,  and  the  power  reserved  to 
Congress  to  forbid  the  circulation  of  small  notes,  are  restric- 
tions comparatively  of  Httle  value  or  importance.  All  the  ob- 
jectionable principles  of  the  existing  corporation,  and  most  of 
its  odious  features,  are  retained  without  alleviation.  .  .  . 

Is  there  no  danger  to  our  Hberty  and  independence  in  a 
bank,  that,  in  its  nature,  has  so  little  to  bind  it  to  our  country? 
The  President  of  the  bank  has  told  us  that  most  of  the  State 
banks  exist  by  its  forbearance.  Should  its  influence  become 
concentred,  as  it  may  under  the  operation  of  such  an  act  as 
this,  in  the  hands  of  a  self-elected  directory,  whose  interests 
are  identified  with  those  of  the  foreign  stockholder,  will  there 
not  be  cause  to  tremble  for  the  purity  of  our  elections  in  peace, 
and  for  the  independence  of  our  country  in  war?  Their  power 
would  be  great  whenever  they  might  choose  to  exert  it;  but  if 
this  monopoly  were  regularly  renewed  every  fifteen  or  twenty 
years,  on  terms  proposed  by  themselves,  they  might  seldom  in 
peace  put  forth  their  strength  to  influence  elections,  or  control 
the  affairs  of  the  nation.  But  if  any  private  citizen  or  public 
functionary  should  interpose  to  curtail  its  powers,  or  prevent  a 
renewal  of  its  privileges,  it  cannot  be  doubted  that  he  would 
be  made  to  feel  its  influence. 

Should  the  stock  of  the  bank  principally  pass  into  the  hands 
of  the  subjects  of  a  foreign  country,  and  we  should  unfortu- 
nately become  involved  in  a  war  with  that  country,  what 
would  be  our  condition?  Of  the  course  which  would  be  pur- 
sued by  a  bank  ahnost  wholly  owned  by  the  subjects  of  a  for- 
eign power,  and  managed  by  those  whose  interests,  if  not 
affections,  would  run  in  the  same  direction,  there  can  be  no 
doubt.  All  its  operations  within,  would  be  in  aid  of  the  hostile 
fleets  and  armies  without.  Controlhng  our  currency,  receiving 
our  pubHc  moneys,  and  holding  thousands  of  our  citizens  in 
dependance,  it  would  be  more  formidable  and  dangerous  than 
the  naval  and  military  power  of  the  enemy.  .  .  . 


372  THE  NEW  DEMOCRACY 

It  is  maintained  by  the  advocates  of  the  bank  that  its  con- 
stitutionaKtyinall  its  features  ought  to  be  considered  as  settled 
by  precedent,  and  by  the  decision  of  the  Supreme  Court.  To 
this  conclusion  I  cannot  assent.  Mere  precedent  is  a  dangerous 
source  of  authority,  and  should  not  be  regarded  as  deciding 
questions  of  constitutional  power,  except  where  the  acqui- 
escence of  the  people  and  the  States  can  be  considered  as  well 
settled.  So  far  from  this  being  the  case  on  this  subject,  an  argu- 
ment against  the  bank  might  be  based  on  precedent.  One 
Congress,  in  179 1,  decided  in  favor  of  a  bank;  another,  in  181 1, 
decided  against  it.  One  Congress,  in  18 15,  decided  against  a 
bank;  another,  in  1816,  decided  in  its  favor.  Prior  to  the  pre- 
sent Congress,  therefore,  the  precedents  drawn  from  that  source 
were  equal.  If  we  resort  to  the  States,  the  expressions  of  legis- 
lative, judicial,  and  executive  opinions  against  the  bank,  have 
been,  probably,  to  those  in  its  favor,  as  four  to  one.  There  is 
nothing  in  precedent,  therefore,  which,  if  its  authority  were 
admitted,  ought  to  weigh  in  favor  of  the  act  before  me. 

If  the  opinion  of  the  Supreme  Court  covered  the  whole 
ground  of  this  act,  it  ought  not  to  control  the  co-ordinate 
authorities  of  this  Government.  The  Congress,  the  Executive, 
and  the  Court,  must  each  for  itself  be  guided  by  its  own  opinion 
of  the  constitution.  Each  pubUc  officer,  who  takes  an  oath  to 
support  the  constitution,  swears  that  he  will  support  it  as  he 
understands  it,  and  not  as  it  is  understood  by  others.   It  is  as 
much  the  duty  of  the  House  of  Representatives,  of  the  Senate, 
and  of  the  President,  to  decide  upon  the  constitutionahty  of 
any  bill  or  resolution  which  may  be  presented  to  them  for 
passage  or  approval,  as  it  is  of  the  Supreme  Judges  when  it 
may  be  brought  before  them  for  judicial  decision.  The  opinion 
of  the  judges  has  no  more  authority  over  Congress,  than  the 
opinion  of  Congress  has  over  the  judges;  and,  on  that  point, 
the  President  is  independent  of  both.    The  authority  of  the 
Supreme  Court  must  not,  therefore,  be  permitted  to  control 
the  Congress  or  the  Executive  when  acting  in  their  legislative 
capacities,  but  to  have  only  such  influence  as  the  force  of  their 
reasoning  may  deserve. 


PRESIDENT  AND  CONGRESS  373 

But,  in  the  case  relied  upon,  the  Supreme  Court  have  not 
decided  that  all  the  features  of  this  corporation  are  compatible 
with  the  constitution.  It  is  true  that  the  court  have  said  that 
the  law  incorporating  the  bank  is  a  constitutional  exercise  of 
power  by  Congress.  But,  taking  into  view  the  whole  opinion 
of  the  court,  and  the  reasoning  by  which  they  have  come  to 
that  conclusion,  I  understand  them  to  have  decided  that,  inas- 
much as  a  bank  is  an  appropriate  means  for  carrying  into  effect 
the  enumerated  powers  of  the  General  Government,  therefore 
the  law  incorporating  it  is  in  accordance  with  that  provision  of 
the  constitution  which  declares  that  Congress  shall  have  power 
"  to  make  all  laws  which  shall  be  necessary  and  proper  for  carry- 
ing those  powers  into  execution."  Having  satisfied  themselves 
that  the  word  ^'necessary''  in  the  constitution,  means  "wegJ/w/," 
^'requisite,'"  ^'essential,"  "conducive  to"  and  that  "a  bank"  is  a 
convenient,  a  useful,  and  essential  instrument,  in  the  prosecu- 
tion of  the  Government's  "fiscal  operations,"  they  conclude, 
that  to  "use  one  must  be  within  the  discretion  of  Congress," 
and  that  "  the  act  to  incorporate  the  Bank  of  the  United  States 
is  a  law  made  in  pursuance  of  the  constitution":  "but,"  say 
they,  "where  the  law  is  not  prohibited,  and  is  really  calculated  to 
efect  any  of  the  objects  entrusted  to  the  Government,  to  undertake 
here  to  inquire  into  the  degree  of  its  necessity,  would  be  to  pass  the 
line  which  circumscribes  the  judicial  department,  and  to  tread  on 
legislative  ground." 

The  principle  here  affirmed  is,  that  the  "degree  of  its  neces- 
sity, "involving  all  the  details  of  a  banking  institution,  is  a  ques- 
tion exclusively  for  legislative  consideration.  A  bank  is  con- 
stitutional; but  it  is  the  province  of  the  Legislature  to  determine 
whether  this  or  that  particular  power,  privilege,  or  exemption, 
is  "necessary  and  proper"  to  enable  the  bank  to  discharge  its 
duties  to  the  Government;  and,  from  their  decision,  there  is  no 
appeal  to  the  courts  of  justice.  Under  the  decision  of  the 
Supreme  Court,  therefore,  it  is  the  exclusive  province  of  Con- 
gress and  the  President  to  decide  whether  the  particular  fea- 
tures of  this  act  are  necessary  and  proper  in  order  to  enable  the 
bank  to  perform  conveniently  and  efficiently  the  public  duties 


374  THE  NEW  DEMOCRACY 

assigned  to  it  as  a  fiscal  agent,  and  therefore  constitutional;  or 
unnecessary dindimproper,aiRdthereioTeunconstitutiom\.  .  .  . 
.  That  a  Bank  of  the  United  States,  competent  to  all  the 
duties  which  may  be  required  by  the  Government,  might  be  so 
organized  as  not  to  infringe  on  our  own  delegated  powers,  or 
the  reserved  rights  of  the  States,  I  do  not  entertain  a  doubt. 
Had  the  Executive  been  called  upon  to  furnish  the  project  of 
such  an  institution,  the  duty  would  have  been  cheerfully  per- 
formed. In  the  absence  of  such  a  call,  it  is  obviously  proper 
that  he  should  confine  himself  to  pointing  out  those  prominent 
features  in  the  act  presented,  »vhich,  in  his  opinion,  make  it 
incompatible  with  the  constitution  and  sound  policy.  A  general 
discussion  will  now  take  place,  eliciting  new  Hght,  and  settling 
important  principles;  and  a  new  Congress,  elected  in  the  midst 
of  such  discussion,  and  furnishing  an  equal  representation  of 
the  people  according  to  the  last  census,  will  bear  to  the  Capitol 
the  verdict  of  public  opinion,  and,  I  doubt  not,  bring  this 
important  question  to  a  satisfactory'  result. 

Under  such  circumstances,  the  bank  comes  forward  and  asks 
a  renewal  of  its  charter  for  a  term  of  fifteen  years,  upon  condi- 
tions which  not  only  operate  as  a  gratuity  to  the  stockholders 
of  many  millions  of  dollars,  but  will  sanction  any  abuses  and 
legalize  any  encroachments.  .  .  . 

The  bank  is  professedly  established  as  an  agent  of  the  Execu- 
tive branches  of  the  Government,  and  its  constitutionality  is 
maintained  on  that  ground.  Neither  upon  the  propriety  of 
present  action,  nor  upon  the  provisions  of  this  act,  was  the 
Executive  consulted.  It  has  had  no  opportunity  to  say  that  it 
neither  needs  nor  wants  an  agent  clothed  with  such  powers, 
and  favored  by  such  exemptions.  There  is  nothing  in  its  legiti- 
mate fimctions  which  make  it  necessary  or  proper.  Whatever 
interest  or  influence,  whether  public  or  private,  has  given  birth 
to  this  act,  it  cannot  be  found  either  in  the  wishes  or  necessi- 
ties of  the  Executive  Department,  by  which  present  action  is 
deemed  premature,  and  the  powers  conferred  upon  its  agent 
not  only  unnecessary,  but  dangerous  to  the  Government  and 
country.  .  .  . 


PRESIDENT  AND  CONGRESS  375 

I  have  now  done  my  duty  to  my  country.  If  sustained  by 
my  fellow-citizens,  I  shall  be  grateful  and  happy;  if  not,  I  shall 
find,  in  the  motives  which  impel  me,  ample  grounds  for  con- 
tentment and  peace.  In  the  difficulties  which  surround  us, 
and  the  dangers  which  threaten  our  institutions,  there  is  cause 
for  neither  dismay  nor  alarm.  For  relief  and  deliverance  let 
us  firmly  rely  on  that  kind  Providence  which,  I  am  sure, 
watches  with  peculiar  care  over  the  destinies  of  our  Republic, 
and  on  the  intelligence  and  wisdom  of  our  countrymen. 
Through  His  abundant  goodness,  and  their  patriotic  devotion, 
our  liberty  and  Union  will  be  preserved. 

117.  Henry  Clay  on  the  Veto  Power} 

.  .  .  On  principle,  certainly,  the  executive  ought  to  have  no 
agency  in  the  formation  of  laws.  Laws  were  the  will  of  the 
nation  authoritatively  expressed.  The  carrying  of  those  laws 
into  effect  was  the  duty  which  ought  to  be  assigned  to  the 
executive,  and  this  ought  to  be  his  sole  duty,  for  it  was  an 
axiom  in  all  free  governments  that  the  three  great  depart- 
ments, legislative,  executive,  and  judicial,  should  ever  be  kept 
separate  and  distinct.  And  a  government  was  the  most  perfect 
when  most  in  conformity  with  this  fundamental  principle. 
To  give,  then,  to  the  executive,  any  agency  in  the  ascertain- 
ment and  expression  of  the  will  of  the  nation,  was  so  far  a 
violation  of  this  great  leading  principle.  But  it  was  said  that 
the  framers  of  our  Constitution  had,  nevertheless,  been  induced 
to  place  the  veto  upon  the  list  of  executive  powers,  by  two  con- 
siderations; the  first  was  a  desire  to  protect  the  executive 
against  the  power  of  the  legislative  branch,  and  the  other  was 
a  prudent  wish  to  guard  the  country  against  the  injurious 
effects  of  crude  and  hasty  legislation.  But  where  was  the  neces- 
sity to  protect  the  executive  against  the  legislative  depart- 
ment? Were  not  both  bound  by  their  solemn  oaths,  to  support 
the  Constitution?  The  judiciary  had  no  veto.  If  the  argument 
was  a  sound  one,  why  was  not  the  same  protection  extended 

^  In  the  Senate,  January  24, 1842.   Mallory,  Life  and  Speeches  of  Henry 
Clay,  n,  519-28  passim. 


376  THE  NEW  DEMOCRACY 

to  the  judiciary  also?  Was  there  not  ample  security  against 
the  encroachments  of  the  legislative  power,  in  the  absence  of 
the  veto?  First,  there  was  the  solemn  oath  of  oflSce;  then  there 
was  the  authority  of  the  judiciary;  then  there  was  the  respon- 
sibility of  individual  members  to  the  people,  and  this  respon- 
sibility continually  kept  up  by  a  frequent  appeal  to  the  pepple; 
and,  lastly,  there  was  the  ultimate  conflict  of  the  President  and 
the  legislature  before  the  grand  tribunal  of  the  nation  itself, 
in  case  of  any  attempt,  by  the  legislature,  to  deprive  him  of  the 
rightful  exercise  of  his  authority,  .  .  . 

He  should  confine  himself  to  what  might  be  called  a  mere 
numerical  estimate  of  the  amount  of  the  veto  power,  and  he 
would  make  this  estimate  by  taking  the  numbers  of  the  two 
houses  of  Congress,  as  those  houses  now  stood.  The  Senate  at 
present  consisted  of  fifty- two  members;  of  that  number  a 
majority  consisted  of  twenty-seven;  two  thirds  amounted  to 
thirty-six.  Supposing  a  law  to  be  passed  by  a  bare  majority, 
(and  in  all  great  and  contested  questions  bills  were  wont  to  be 
passed  by  very  small  majorities,)  then  there  would  be  in  its 
favor  twenty-seven  votes.  The  bill  was  submitted  to  the 
President,  and  returned  by  him  with  his  veto.  The  force  of  the 
presidential  veto  could  not  be  overturned  but  by  thirty-six 
votes.  Here,  then,  the  veto  in  the  hands  of  the  President  was 
equal  in  its  effect  upon  legislation  to  nine  senatorial  votes.  Mr. 
Clay  dismissed  all  considerations  of  influence  derived  from  his 
ofl5ce,  all  the  gUtter  and  eclat  of  the  President's  high  station, 
and  all  the  persuasion  directed  to  the  interests  of  men  by  his 
vast  patronage;  all  this  he  laid  out  of  view,  and  looked  merely 
at  the  numerical  fact,  that  in  the  Senate  the  veto  was  equal 
to  nine  votes.  And  now  in  regard  to  the  other  branch.  The 
House  of  Representatives  consisted  of  two  hundred  and  forty- 
two  members;  to  constitute  a  majority  required  one  hundred 
and  twenty-two ;  two  thirds  amounted  to  one  hundred  and  sixty- 
two.  By  looking  at  this  difference,  it  would  be  seen,  as  in  the 
case  of  the  Senate,  that  the  executive  veto  amoimted  in  effect 
to  forty  representative  votes.  .  .  . 

He  contended,  that  practically,  and  in  effect,  the  veto, 


PRESIDENT  AND  CONGRESS  377 

armed  with  such  a  quaHfication  as  now  accompanied  it  in  the 
Constitution,  was  neither  more  nor  less  than  an  absolute 
power.  It  was  virtually  an  unqualified  negative  on  the  legisla- 
tion of  Congress.  Not  a  solitary  instance  had  yet  occurred  in 
which  the  veto  once  exerted  had  ever  been  overruled,  nor  was 
such  a  case  Likely  to  happen.  In  most  questions  where  the  veto 
could  be  exerted,  there  was  always  a  considerable  difference  of 
opinion  both  in  the  country  and  in  Congress  as  to  the  bill 
which  had  been  passed.  In  such  circumstances,  when  all  the 
personal  influence,  the  official  patronage,  and  the  reasoning 
which  accompanied  the  veto,  were  added  to  the  substantial 
weight  of  the  veto  itself,  every  man  acquainted  with  human 
nature  would  be  ready  to  admit,  that  if  nothing  could  set  it 
aside  but  a  vote  of  two  thirds  in  both  houses,  it  might  as  well 
have  been  made  absolute  at  once.  .  .  . 

.  .  .  The  veto  power  professed  to  act  only  while  the  legisla- 
ture acted;  then  it  was  to  terminate.  Its  effect  was  to  be,  to 
consummate  legislation.  The  officer  of  government,  in  whose 
hands  the  Constitution  placed  a  power  so  formidable,  was 
supposed  in  theory  to  remain  profoundly  silent  as  to  the  passage 
of  great  measures  of  public  policy,  until  they  were  presented 
to  him  in  a  finished  form  for  his  approbation  and  sanction. 

This  was  the  theory;  but  Mr.  Clay  contended,  that  really 
and  in  practice  this  veto  power  drew  after  it  the  power  of  initi- 
ating laws,  and  in  its  effect  must  ultimately  amount  to  confer- 
ring on  the  executive  the  entire  legislative  power  of  the  govern- 
ment. With  the  power  to  initiate  and  the  power  to  consummate 
legislation,  to  give  vitality  and  vigor  to  every  law,  or  to  strike 
it  dead  at  his  pleasure,  the  President  must  ultimately  become 
the  ruler  of  the  nation.  .  .  . 

The  actual  condition  of  a  President  of  the  United  States  did 
not  very  widely  differ  from  that  of  the  monarchs  of  the  old 
world.  Here,  too,  the  chief  magistrate  occupied  an  isolated 
station,  where  the  voice  of  his  country  and  the  cries  of  its  dis- 
tress could  not  reach  his  ear.  He,  too,  was  surrounded  by  a 
cordon  of  favorites,  flatterers,  and  fawns.  Isolated  in  this  dis- 
trict, with  no  embarrassments  himself,  the  echoes  of  the  pub- 


378  THE  NEW  DEMOCRACY 

lie  distress,  if  they  reached  his  ear  at  all,  reached  it  with  a 
faint  and  feeble  sound,  bemg  obstructed  by  those  who  sur- 
rounded his  person,  and  approached  him  only  to  flatter.  Facts 
were  boldly  denied,  and  all  complaints  attributed  to  a  factious 
spirit.  Now,  he  would  ask,  was  a  man  thus  separated,  and  thus 
surrounded,  more  likely  to  know  the  real  sufferings,  wants,  and 
wishes  of  his  countrymen,  than  the  two  hundred  and  forty-two 
men  in  the  other  house,  or  the  fifty-two  men  in  this  house, 
who  came  up  here  directly  from  their  bosom,  who  shared  in  all 
their  sufferings,  who  felt  their  wants,  participated  in  their 
wishes,  and  sympathized  with  all  their  sorrows?  That  was  the 
true  question  of  the  veto  power.  Now  he  thought  if  these 
things  were  duly  considered,  (and  he  spoke  not  of  this  or  of 
that  incumbent  of  the  office,  but  of  the  circumstances  of  every 
one  who  filled  it,)  it  must  be  admitted,  by  every  candid  mind, 
that  the  responsibility  was  great  of  a  man  who  should  under- 
take, on  his  own  private  opinion,  to  resist  and  suppress  the 
will  of  the  nation,  constitutionally  expressed.  It  was  a  power 
not  merely  to  annul  the  national  will,  as  lawfully  uttered  by 
its  own  chosen  representatives;  but  the  power  to  initiate  legis- 
lation itself,  and  to  substitute  for  the  will  of  the  nation  an  alien 
\vill,  neither  of  the  nation,  nor  of  its  representatives.  .  .  . 

ii8.  President  Polk  on  the  Exercise  of  the  Veto  Power} 

.  .  .  The  preservation  of  the  Constitution  from  infraction 
is  the  President's  highest  duty.  He  is  bound  to  discharge  that 
duty  at  whatever  hazard  of  incurring  the  displeasure  of  those 
who  may  differ  with  him  in  opinion.  He  is  bound  to  discharge 
it  as  well  by  his  obligations  to  the  people  who  have  clothed 
him  with  his  exalted  trust  as  by  his  oath  of  office,  which  he  may 
not  disregard.  Nor  are  the  obligations  of  the  President  in  any 
degree  lessened  by  the  prevalence  of  views  different  from  his 
own  in  one  or  both  Houses  of  Congress.  It  is  not  alone  hasty 
and  inconsiderate  legislation  that  he  is  required  to  check;  but 
if  at  any  time  Congress  shall,  after  apparently  full  deliberation, 

^  Annual  Message,  December  5, 1848.  Richardson,  Messages  and  Papers 
of  the  Presidents,  iv,  662-65  passim. 


PRESIDENT  AND  CONGRESS  379 

resolve  on  measures  which  he  deems  subversive  of  the  Consti- 
tution or  of  the  vital  interests  of  the  country,  it  is  his  solemn 
duty  to  stand  in  the  breach  and  resist  them.  The  President 
is  bound  to  approve  or  disapprove  every  bill  which  passes 
Congress  and  is  presented  to  him  for  his  signature.  The  Con- 
stitution makes  this  his  duty,  and  he  can  not  escape  it  if  he 
would.  .  .  . 

Any  attempt  to  coerce  the  President  to  yield  his  sanction  to 
measures  which  he  can  not  approve  would  be  a  violation  of  the 
spirit  of  the  Constitution,  palpable  and  flagrant,  and  if  success- 
ful would  break  down  the  independence  of  the  executive  de- 
partment and  make  the  President,  elected  by  the  people  and 
clothed  by  the  Constitution  with  power  to  defend  their  rights, 
the  mere  instrument  of  a  majority  of  Congress.  .  .  . 

The  people,  by  the  Constitution,  have  commanded  the 
President,  as  much  as  they  have  commanded  the  legislative 
branch  of  the  Government,  to  execute  their  will.  They  have 
said  to  him  in  the  Constitution,  which  they  require  he  shall 
take  a  solemn  oath  to  support,  that  if  Congress  pass  any  bill 
which  he  can  not  approve  "he  shall  return  it  to  the  House  in 
which  it  originated  with  his  objections."  In  withholding  from 
it  his  approval  and  signature  he  is  executing  the  will  of  the 
people,  constitutionally  expressed,  as  much  as  the  Congress 
that  passed  it.  .  .  . 

If  it  be  said  that  the  Representatives  in  the  popular  branch 
of  Congress  are  chosen  directly  by  the  people,  it  is  answered, 
the  people  elect  the  President.  If  both  Houses  represent  the 
States  and  the  people,  so  does  the  President.  The  President 
represents  in  the  executive  department  the  whole  people  of  the 
United  States,  as  each  member  of  the  legislative  department 
represents  portions  of  them.  .  .  . 

In  the  exercise  of  the  power  of  the  veto  the  President  is 
responsible  not  only  to  an  enlightened  public  opinion,  but  to 
the  people  of  the  whole  Union,  who  elected  him,  as  the  repre- 
sentatives in  the  legislative  branches  who  differ  with  him  in 
opinion  are  responsible  to  the  people  of  particular  States  or 
districts,  who  compose  their  respective  constituencies.  .  .  . 


CHAPTER  XLII 

THE    PRESIDENT   AS    THE   DIRECT   REPRESENTATIVE    OF 
THE    PEOPLE 

In  directing  the  Secretary  of  the  Treasury  to  remove  the  public  deposits 
from  the  Bank  of  the  United  States,  President  Jackson  assumed  a  power 
of  control  over  that  officer  which  was  promptly  challenged  as  unprece- 
dented by  his  opponents.  The  reasons  actuating  the  President  are  set 
forth  in  the  paper  read  to  the  Cabinet.  It  is  important  to  note  that  the 
directive  power  thus  asserted  has  made  the  President  the  effective  head 
of  the  national  administration.  The  course  of  President  Jackson  drew 
the  heaviest  fire  which  Whig  leaders  could  direct  upon  him.  After  three 
months  of  cannonading,  the  Senate  resolved  "That  the  President,  in  the 
late  executive  proceedings  in  relation  to  the  public  revenue,  has  assumed 
upon  himself  authority  and  power  not  conferred  by  the  Constitution  and 
laws,  but  in  derogation  of  both."  President  Jackson's  reply,  commonly 
known  as  the  "  Protest,"  is  one  of  the  most  remarkable  messages  ever  sent 
to  the  Senate. 

119.  President  Jackson's  Paper  read  to  the  Cabinet.^ 

.  .  .  The  power  of  the  secretary  of  the  treasury  over  the 
deposites  is  unqualified.  The  provision  that  he  shall  report  his 
reasons  to  congress,  is  no  Hmitation.  Had  it  not  been  inserted, 
he  vi^ould  have  been  responsible  to  congress,  had  he  made  a 
removal  for  any  other  than  good  reasons,  and  his  responsibility 
now  ceases,  upon  the  rendition  of  sufficient  ones  to  congress. 
The  only  object  of  the  provision,  is  to  make  his  reasons  acces- 
sible to  congress,  and  enable  that  body  the  more  readily  to 
judge  of  their  soundness  and  purity,  and  thereupon  to  make 
such  further  provision  by  law  as  the  legislative  power  may 
think  proper  in  relation  to  the  deposite  of  the  public  money. 
Those  reasons  may  be  very  diversified.  It  was  asserted  by  the 
secretary  of  the  treasury  without  contradiction,  as  early  as 
18 1 7,  that  he  had  power  "to  control  the  proceedings"  of  the 
bank  of  the  United  States  at  any  moment,  *'by  changing  the 
deposites  to  the  state  banks,"  should  it  pursue  an  illiberal 
*  September  18,  1833.  Niks* s  Register,  xlv,  73-77  passim. 


PRESIDENT  AS  REPRESENTATIVE     381 

course  towards  those  institutions;  that  "the  secretary  of  the 
treasury  will  always  be  disposed  to  support  the  credit  of  the 
state  banks,  and  will  invariably  direct  transfers  from  the 
deposites  of  the  public  money  in  aid  of  their  legitimate  exer- 
tions to  maintain  their  credit,"  and  he  asserted  a  right  to  em- 
ploy the  state  banks  when  the  bank  of  the  United  States  should 
refuse  to  receive  on  deposite  the  notes  of  such  state  banks  as 
the  public  interest  required  should  be  received  in  payment  of 
the  public  dues.  In  several  instances  he  did  transfer  the  public 
deposites  to  state  banks,  in  the  immediate  vicinity  of  branches, 
for  reasons  connected  only  with  the  safety  of  those  banks,  the 
public  convenience  and  the  interests  of  the  treasury. 

If  it  was  lawful  for  Mr.  Crawford,  the  secretary  of  the  treas- 
ury at  that  time,  to  act  on  these  principles,  it  will  be  difficult 
to  discover  any  sound  reason  against  the  application  of  similar 
principles  in  still  stronger  cases.  And  it  is  a  matter  of  surprise 
that  a  power  which,  in  the  infancy  of  the  bank,  was  freely 
asserted  as  one  of  the  ordinary  and  familiar  duties  of  the  sec- 
retary of  the  treasury,  should  now  be  gravely  questioned,  and 
attempts  made  to  excite  and  alarm  the  public  mind  as  if  some 
new  and  unheard  of  power  was  about  to  be  usurped  by  the 
executive  branch  of  the  government.  .  .  . 

It  is  for  the  wisdom  of  Congress  to  decide  upon  the  best 
substitute  to  be  adopted  in  the  place  of  the  bank  of  the  United 
States ;  and  the  president  would  have  felt  himself  relieved  from 
a  heavy  and  painful  responsibility  if  in  the  charter  of  the  bank, 
congress  had  reserved  to  itself  the  power  of  directing  at  its 
pleasure,  the  public  money  to  be  elsewhere  deposited,  and  had 
not  devolved  that  power  exclusively  on  one  of  the  executive 
departments.  .  .  .  But  as  the  president  presumes  that  the 
charter  to  the  bank  is  to  be  considered  as  a  contract  on  the  part 
of  the  government,  it  is  not  now  in  the  power  of  congress  to 
disregard  its  stipulations;  and  by  the  terms  of  that  contract 
the  public  money  is  to  be  deposited  in  the  bank,  during  the 
continuance  of  its  charter,  unless  the  secretary  of  the  treasury 
shall  otherwise  direct.  Unless,  therefore,  the  secretary  of  the 
treasury  first  acts,  congress  have  no  power  over  the  subject, 


382  THE  NEW  DEMOCRACY 

for  they  cannot  add  a  new  clause  to  the  charter  or  strike  one 
out  of  it  without  the  consent  of  the  bank;  and  consequently 
the  public  money  must  remain  in  that  institution  to  the  last 
hour  of  its  existence,  unless  the  secretary  of  the  treasury  shall 
remove  it  at  an  earlier  day. 

The  responsibility  is  thus  thrown  upon  the  executive  branch 
of  the  government,  of  deciding  how  long  before  the  expiration 
of  the  charter,  the  public  interests  will  require  the  deposites 
to  be  placed  elsewhere.  .  .  .  and  it  being  the  duty  of  one  of 
the  executive  departments  to  decide  in  the  first  instance,  sub- 
ject to  the  future  action  of  the  legislative  power,  whether  the 
public  deposites  shall  remain  in  the  bank  of  the  United  States 
until  the  end  of  its  existence,  or  be  withdrawn  some  time  before, 
the  president  has  felt  himself  bound  to  examine  the  question 
carefully  and  deliberately  in  order  to  make  up  his  judgment 
on  the  subject:  and  in  his  opinion  the  near  approach  of  the 
termination  of  the  charter,  and  the  public  considerations  here- 
tofore mentioned,  are  of  themselves  amply  sufficient  to  justify 
the  removal  of  the  deposites  without  reference  to  the  conduct 
of  the  bank,  or  their  safety  in  its  keeping.  .  .  . 

In  conclusion  the  president  must  be  permitted  to  remark 
that  he  looks  upon  the  pending  question  as  of  higher  considera- 
tion than  the  mere  transfer  of  a  sum  of  money  from  one  bank 
to  another.  Its  decision  may  afifect  the  character  of  our  govern- 
ment for  ages  to  come.  Should  the  bank  be  suffered  longer  to 
use  the  public  moneys,  in  the  accomplishment  of  its  purposes, 
with  the  proofs  of  its  faithlessness  and  corruption  before  our 
eyes,  the  patriotic  among  our  citizens  will  despair  of  success  in 
struggling  against  its  power;  and  we  shall  be  responsible  for 
entailing  it  upon  our  country  forever.  Viewing  it  as  a  question 
of  transcendant  importance,  both  in  the  principles  and  conse- 
quences it  involves,  the  president  could  not,  in  justice  to  the 
responsibility  which  he  owes  to  the  country,  refrain  from 
pressing  upon  the  secretary  of  the  treasury,  his  view  of  the 
considerations  which  impel  to  immediate  action.  Upon  him 
has  been  devolved  by  the  constitution  and  the  suffrages  of  the 
American  people,  the  duty  of  superintending  the  operation 


PRESIDENT  AS  REPRESENTATIVE     383 

of  the  executive  departments  of  the  government,  and  seeing 
that  the  laws  are  faithfully  executed.  In  the  performance  of 
this  high  trust,  it  is  his  undoubted  right  to  express  to  those 
whom  the  laws  and  his  own  choice  have  made  his  associates  in 
the  administration  of  the  government,  his  opinion  of  their 
duties  under  circumstances  as  they  arise.  It  is  this  right  which 
he  now  exercises.  Far  be  it  from  him  to  expect  or  require,  that 
any  member  of  the  cabinet  should,  at  his  request,  order  or  dicta- 
tion, do  any  act  which  he  believes  unlawful,  or  in  his  con- 
science condemns.  From  them  and  from  his  fellow  citizens  in 
general,  he  desires  only  that  aid  and  support,  which  their 
reason  approves  and  their  conscience  sanctions. 

In  the  remarks  he  has  made  on  this  all  important  question, 
he  trusts  the  secretary  of  the  treasury  will  see  only  the  frank 
and  respectful  declarations  of  the  opinions  which  the  president 
has  formed  on  a  measure  of  great  national  interest,  deeply 
affecting  the  character  and  usefulness  of  his  administration; 
and  not  a  spirit  of  dictation,  which  the  president  would  be  as 
careful  to  avoid,  as  ready  to  resist.  Happy  will  he  be,  if  the 
facts  now  disclosed  produce  uniformity  of  opinion  and  unity  of 
action  among  the  members  of  the  administration. 

The  president  again  repeats  that  he  begs  his  cabinet  to  con 
sider  the  proposed  measure  as  his  own,  in  the  support  of  which 
he  shall  require  no  one  of  them  to  make  a  sacrifice  of  opinion 
or  principle.  Its  responsibility  has  been  assumed,  after  the 
most  mature  deliberation  and  reflection,  as  necessary  to  pre- 
serve the  morals  of  the  people,  the  freedom  of  the  press  and 
the  purity  of  the  elective  franchise,  without  which  all  will  unite 
in  sa>'ing  that  the  blood  and  treasure  expended  by  our  fore- 
fathers in  the  establishment  of  our  happy  system  of  govern- 
ment will  have  been  vain  and  fruitless.  Under  these  convictions, 
he  feels  that  a  measure  so  important  to  the  American  people 
cannot  be  commenced  too  soon;  and  he  therefore  names  the 
first  day  of  October  next,  as  a  period  proper  for  the  change 
of  the  deposites,  or  sooner,  provided  the  necessary  arrange- 
ments with  the  state  banks  can  be  made. 


P 


384  THE  NEW  DEMOCRACY 

120.  President  Jackson's  "Protest."^ 

Under  the  constitution  of  the  United  States,  the  powers  and 
functions  of  the  various  departments  of  the  federal  govern- 
ment, and  their  responsibilities  for  violation  or  neglect  of  duty, 
are  clearly  defined  or  result  by  necessary  inference.  The  legis- 
lative power  subject  to  the  qualified  negative  of  the  president, 
is  vested  in  the  congress  of  the  United  States,  composed  of  the 
senate  and  house  of  representatives.  The  executive  power  is 
vested  exclusively  in  the  president,  except  that  in  the  conclu- 
sion of  treaties  and  in  certain  appointments  to  office,  he  is  to 
act  with  the  advice  and  consent  of  the  senate.  The  judicial 
power  is  vested  exclusively  in  the  supreme  and  other  courts  of 
the  U.  States,  except  in  cases  of  impeachment,  for  which  pur- 
pose the  accusatory  power  is  vested  in  the  house  of  representa- 
tives, and  that  of  hearing  and  determining  in  the  senate.  But 
although  for  the  special  purposes  which  have  been  mentioned, 
there  is  an  occasional  intermixture  of  the  powers  of  the  different 
departments,  yet  with  these  exceptions,  each  of  the  three  great 
departments  is  independent  of  the  others  in  its  sphere  of  action; 
and  when  it  deviates  from  that  sphere  is  not  responsible  to  the 
others,  further  than  it  is  expressly  made  so  in  the  constitution. 
In  every  other  respect,  each  of  them  is  the  coequal  of  the  other 
two,  and  all  are  the  servants  of  the  American  people,  without 
power  or  right  to  control  or  censure  each  other  in  the  service 
of  their  common  superior,  save  only  in  the  manner  and  to  the 
degree  which  that  superior  has  prescribed.  ... 

Tested  by  these  principles,  the  resolution  of  the  senate  is 
wholly  unauthorised  by  the  constitution,  and  in  derogation  of 
its  entire  spirit.  It  assumes  that  a  single  branch  of  the  legisla- 
tive department  may  for  the  purposes  of  a  public  censure,  and 
without  any  view  to  legislation  or  impeachment,  take  up,  con- 
sider, and  decide  upon,  the  official  acts  of  the  executive.  But 
in  no  part  of  the  constitution  is  the  president  subjected  to 
any  such  responsibility;  and  in  no  part  of  that  instrument  is 

*  Message  to  the  Senate,  April  15,  1834.  Richardson,  Messages  and 
Papers  of  the  Presidents,  in,  69-93. 


PRESIDENT  AS  REPRESENTATIVE     385 

any  such  power  conferred  on  either  branch  of  the  legisla- 
ture. .  .  . 

The  resolution  in  question  was  introduced,  discussed  and 
passed,  not  as  a  joint,  but  as  a  separate  resolution.  It  asserts 
no  legislative  power,  proposes  no  legislative  action ;  and  neither 
possesses  the  form  nor  any  of  the  attributes  of  a  legislative 
measure.  It  does  not  appear  to  have  been  entertained  or  passed, 
with  any  view  or  expectation  of  its  issuing  in  a  law  or  joint 
resolution,  or  in  the  repeal  of  any  law  or  joint  resolution,  or  in 
any  other  legislative  action. 

Whilst  wanting  both  the  form  and  substance  of  a  legislative 
measure,  it  is  equally  manifest,  that  the  resolution  was  not 
justified  by  any  of  the  executive  powers  conferred  on  the  sen- 
ate. These  powers  relate  exclusively  to  the  consideration  of 
treaties  and  nominations  to  office ;  and  they  are  exercised  in  se- 
cret session,  and  with  closed  doors.  This  resolution  does  not  apply 
to  any  treaty  or  nomination,  and  was  passed  in  a  public  session. 

Nor  does  this  proceeding  in  any  way  belong  to  that  class  of 
incidental  resolutions  which  relate  to  the  officers  of  the  senate, 
to  their  chamber,  and  other  appurtenances,  or  to  subjects  of 
order,  and  other  matters  of  the  like  nature  —  in  all  which 
either  house  may  lawfully  proceed  without  any  co-operation 
with  the  other,  or  with  the  president. 

On  the  contrary  the  whole  phraseology  and  sense  of  the 
resolution  seem  to  be  judicial.  Its  essence,  true  character,  and 
only  practical  effect,  are  to  be  found  in  the  conduct  which  it 
charges  upon  the  president,  and  in  the  judgment  which  it 
pronounces  on  that  conduct.  The  resolution  therefore,  though 
discussed  and  adopted  by  the  senate  in  its  legislative  capac- 
ity, is,  in  its  office,  and  in  all  its  characteristics,  essentially  judi- 
cial. .  .  . 

The  resolution  above  quoted,  charges  in  substance  that  in 
certain  proceedings  relating  to  the  public  revenue,  the  president 
has  usurped  authority  and  power  not  conferred  upon  him  by  the 
constitution  and  laws,  and  that  in  doing  so  he  violated  both. 
Any  such  act  constitutes  a  high  crime  —  one  of  the  highest, 
indeed,  which  the  president  can  commit  —  a  crime  which 


386  THE  NEW  DEMOCRACY 

justly  exposes  him  to  impeachment  by  the  house  of  representa- 
tives, and  upon  due  conviction,  to  removal  from  office,  and  to 
the  complete  and  immutable  disfranchisement  prescribed  by 
the  constitution. 

The  resolution,  then,  was  in  substance  an  impeachment  of 
the  president;  and  in  its  passage  amounts  to  a  declaration  by  a 
m-ajority  of  the  senate,  that  he  is  guilty  of  an  impeachable 
offence.  As  such  it  is  spread  upon  the  journals  of  the  senate  — 
pubHshed  to  the  nation  and  to  the  world  —  made  part  of  our 
enduring  archives  —  and  incorporated  in  the  history  of  the 
age.  The  punishment  of  removal  from  office  and  future  dis- 
qualification, does  not,  it  is  true,  follow  this  decision;  nor  would 
it  have  followed  the  Hke  decision,  if  the  regular  forms  of  pro- 
ceeding had  been  pursued,  because  the  requisite  number  did 
not  concur  in  the  result.  But  the  moral  influence  of  a  solemn 
declaration,  by  a  majority  of  the  senate,  that  the  accused  is 
guilty  of  the  offence  charged  upon  him,  has  been  as  effectually 
secured,  as  if  the  like  declaration  had  been  made  upon  an 
impeachment  expressed  in  the  same  terms.  Indeed,  a  greater 
practical  effect  has  been  gained,  because  the  votes  given  for 
the  resolution,  though  not  sufficient  to  authorise  a  judgment 
of  guilty  on  an  impeachment,  were  numerous  enough  to  carry 
that  resolution. 

That  the  resolution  does  not  expressly  allege  that  the 
assumption  of  power  and  authority,  which  it  condemns,  was 
intentional  and  corrupt,  is  no  answer  to  the  preceding  v-iew  of 
its  character  and  effect.  The  act  thus  condemned,  necessarily 
implies  volition  and  design  in  the  individual  to  whom  it  is 
imputed,  and  being  unlawful  in  its  character,  the  legal  conclu- 
sion is,  that  it  was  prompted  by  improper  motives,  and  com- 
mitted with  an  unlawful  intent.  The  charge  is  not  of  a  mistake 
in  the  exercise  of  supposed  powers,  but  of  the  assumption  of 
powers  not  conferred  by  the  constitution  and  laws,  but  in  dero- 
gation of  both,  and  nothing  is  suggested  to  excuse  or  palliate 
the  turpitude  of  the  act.  In  the  absence  of  any  such  excuse,  or 
palliation,  there  is  room  only  for  one  inference;  and  that  is, 
that  the  intent  was  unlawful  and  corrupt.  Besides,  the  resolu- 


PRESIDENT  AS  REPRESENTATIVE     387 

tion  not  only  contains  no  mitigating  suggestion,  but  on  the 
contrary,  it  holds  up  the  act  complained  of  as  justly  obnoxious 
to  censure  and  reprobation:  and  thus  as  distinctly  stamps  it 
with  impurity  of  motive,  as  if  the  strongest  epithets  had  been 
used. 

The  president  of  the  United  States,  therefore,  has  been  by  a 
majority  of  his  constitutional  triers,  accused  and  found  guilty 
of  an  impeachable  offence:  but  in  no  part  of  this  proceeding 
have  the  directions  of  the  constitution  been  observed.  .  .  . 

The  honest  differences  of  opinion  which  occasionally  exist 
between  the  senate  and  the  president,  in  regard  to  matters  in 
which  both  are  obliged  to  participate,  are  sufficiently  embar- 
rassing. But  if  the  course  recently  adopted  by  the  senate  shall 
hereafter  be  frequently  pursued,  it  is  not  only  obvious  that  the 
harmony  of  the  relations  between  the  president  and  the  senate 
will  be  destroyed,  but  that  other  and  graver  effects  will  ulti- 
mately ensue.  If  the  censures  of  the  senate  be  submitted  to  by 
the  president,  the  confidence  of  the  people  in  his  ability  and 
virtue,  and  the  character  and  usefulness  of  his  administration, 
will  soon  be  at  an  end,  and  the  real  power  of  the  government 
will  fall  into  the  hands  of  a  body,  holding  their  offices  for  long 
terms,  not  elected  by  the  people,  and  not  to  them  directly  re- 
sponsible. If,  on  the  other  hand,  the  illegal  censures  of  the 
senate  should  be  resisted  by  the  president,  collisions  and  angry 
controversies  might  ensue,  discreditable  in  their  progress,  and 
in  the  end  compelling  the  people  to  adopt  the  conclusion, 
either  that  their  chief  magistrate  was  unworthy  of  their  respect, 
or  that  the  senate  was  chargeable  with  calumny  and  injustice. 
Either  of  these  results  would  impair  public  confidence  in  the 
perfection  of  the  system,  and  lead  to  serious  alterations  of  its 
frame  work,  or  to  the  practical  abandonment  of  some  of  its 
provisions. 

The  influence  of  such  proceedings  on  the  other  departments 
of  the  government,  and  more  especially  on  the  states,  could 
not  fail  to  be  extensively  pernicious.  When  the  judges  in  the 
last  resort  of  official  misconduct  themselves  overleap  the 
bounds  of  their  authority,  as  prescribed  by  the  constitution, 


388  THE  NEW  DEMOCRACY 

what  general  disregard  of  its  provisions  might  not  their  example 
be  expected  to  produce?  And  who  does  not  perceive  that  such 
contempt  of  the  federal  constitution,  by  one  of  its  most  im- 
portant departments,  would  hold  out  the  strongest  temptation 
to  resistance  on  the  part  of  the  state  sovereignties,  whenever 
they  shall  suppose  their  just  rights  to  have  been  invaded?  Thus 
all  the  independent  departments  of  the  government,  and  the 
states  which  compose  our  confederated  union,  instead  of  attend- 
ing to  their  appropriate  duties,  and  leaving  those  who  may 
offend,  to  be  reclaimed  or  punished  in  the  manner  pointed 
out  in  the  constitution,  would  tall  to  mutual  crimination  and 
recrimination,  and  give  to  the  people  confusion  and  anarchy, 
instead  of  order  and  law;  until  at  length  some  form  of  aristo- 
cratic power  would  be  established  on  the  ruins  of  the  constitu- 
tion, or  the  states  be  broken  into  separate  communities. 

Far  be  it  from  me  to  charge,  or  to  insinuate,  that  the  present 
senate  of  the  United  States  intend,  in  the  most  distant  way,  to 
encourage  such  a  result.  It  is  not  of  their  motives  or  designs, 
but  only  of  the  tendency  of  their  acts,  that  it  is  my  duty  to 
speak.  It  is,  if  possible,  to  make  senators  themselves  sensible 
of  the  danger  which  lurks  under  the  precedent  set  in  their  reso- 
lution, and  at  any  rate  to  perform  my  duty,  as  the  responsible 
head  of  one  of  the  coequal  departments  of  the  government, 
that  I  have  been  compelled  to  point  out  the  consequences  to 
which  the  discussion  and  passage  of  the  resolution  may  lead, 
if  the  tendency  of  the  measure  be  not  checked  in  its  inception. 

It  is  due  to  the  high  trust  with  which  I  have  been  charged; 
to  those  who  may  be  called  to  succeed  me  in  it ;  to  the  represent- 
atives of  the  people,  whose  constitutional  prerogative  has  been 
unlawfully  assumed;  to  the  people  of  the  states;  and  to  the 
constitution  they  have  established;  that  I  should  not  permit 
its  provisions  to  be  broken  down  by  such  an  attack  on  the  execu- 
tive department,  without  at  least  some  effort  "to  preserve, 
protect,  and  defend  them."  With  this  view,  and  for  the  reasons 
which  have  been  stated,  I  do  hereby  solemnly  protest 
against  the  aforementioned  proceedings  of  the  senate,  as  un- 
authorized by  the  constitution;  contrary  to  its  spirit  and  to 


PRESIDENT  AS  REPRESENTATIVE     389 

several  of  its  express  provisions;  subversive  of  that  distribu- 
tion of  the  powers  of  government  which  it  has  ordained  and 
estabHshed ;  destructive  of  the  checks  and  safeguards  by  which 
those  powers  were  intended,  on  the  one  hand,  to  be  controlled, 
and  on  the  other  to  be  protected ;  and  calculated  by  their  imme- 
diate and  collateral  efifects,  by  their  character  and  tendency, 
to  concentrate  in  the  hands  of  a  body  not  directly  amenable 
to  the  people,  a  degree  of  influence  and  power  dangerous  to 
their  liberties,  and  fatal  to  the  constitution  of  their  choice.  .  .  . 

121.  Daniel  Webster  on  the  ^^  Protest. ^^"^ 

.  .  .  The  first  proposition,  then,  which  the  Protest  asserts, 
in  regard  to  the  President's  powers  as  executive  magistrate, 
is,  that,  the  general  duty  being  imposed  on  him  by  the  Consti- 
tution, of  taking  care  that  the  laws  be  faithfully  executed,  he 
thereby  becomes  himself  responsible  for  the  conduct  of  every 
person  employed  in  the  government;  "for  the  entire  action," 
as  the  paper  expresses  it,  "of  the  executive  department." 
This,  Sir,  is  very  dangerous  logic.  I  reject  the  inference  alto- 
gether. No  such  responsibility,  nor  any  thing  Hke  it,  follows 
from  the  general  provision  of  the  Constitution,  making  it  his 
duty  to  see  the  laws  executed.  If  it  did,  we  should  have,  in 
fact,  but  one  officer  in  the  whole  government.  The  President 
would  be  everybody.  And  the  Protest  assumes  to  the  Presi- 
dent this  whole  responsibility  for  every  other  officer,  for  the 
very  purpose  of  making  the  President  everybody,  of  annihil- 
ating every  thing  like  independence,  responsibility,  or  char- 
acter, in  all  other  public  agents.  The  whole  responsibility  is 
assumed,  in  order  that  it  may  be  more  plausibly  argued  that 
all  officers  of  government  are,  not  agents  of  the  law,  but  the 
President's  agents,  and  therefore  responsible  to  him  alone.  If 
he  be  responsible  for  the  conduct  of  all  officers,  and  they  be 
responsible  to  him  only,  then  it  may  be  maintained  that  such 
officers  are  but  his  own  agents,  his  substitutes,  his  deputies. 
The  first  thing  to  be  done,  therefore,  is  to  assume  the  respon- 

1  In  the  Senate,  May  7,  1834.  Works  of  Daniel  Webster  (1851),  iv, 
136-45  passim. 


390  THE  NEW  DEMOCRACY 

sibility  for  all;  and  this,  you  will  perceive,  Sir,  is  done,  in  the 
fullest  manner,  in  the  passages  which  I  have  read.  Having 
thus  assumed  for  the  President  the  entire  responsibility  of  the 
whole  government,  the  Protest  advances  boldly  to  its  conclu- 
sion, and  claims,  at  once,  absolute  power  over  all  individuals 
in  office,  as  being  merely  the  President's  agents.  This  is  the 
language:  ''The  whole  executive  power  being  vested  in  the 
President,  who  is  responsible  for  its  exercise,  it  is  a  necessary 
consequence  that  he  should  have  a  right  to  employ  agents  of 
his  own  choice  to  aid  him  in  the  performance  of  his  duties,  and 
to  discharge  them  when  he  is  no  longer  willing  to  be  responsible 
for  their  acts." 

This,  Sir,  completes  the  work.  This  handsomely  rounds  o£f 
the  whole  executive  system  of  executive  authority.  First,  the 
President  has  the  whole  responsibihty;  and  then,  being  thus 
responsible  for  all,  he  has,  and  ought  to  have,  the  whole  power. 
We  have  heard  of  political  units,  and  our  American  executive, 
as  here  represented,  is  indeed  a  unit.  We  have  a  charmingly 
simple  government !  Instead  of  many  officers,  in  different  de- 
partments, each  having  appropriate  duties  and  each  responsible 
for  his  own  duties,  we  are  so  fortunate  as  to  have  to  deal  with 
but  one  officer.  The  President  carries  on  the  government;  all 
the  rest  are  but  sub-contractors.  Sir,  whatever  name  we  give 
him,  we  have  but  One  Executive  Officer,  A  Briareus  sits  in  the 
centre  of  our  system,  and  with  his  hundred  hands  touches 
every  thing,  moves  every  thing,  controls  every  thing.  I  ask, 
Sir,  Is  this  republicanism?  Is  this  a  government  of  laws?  Is 
this  legal  responsibility?  .  .  . 

Sir,  it  exceeds  human  belief  that  any  man  should  put  senti- 
ments such  as  this  paper  contains  into  a  public  communication 
from  the  President  to  the  Senate.  They  are  sentiments  which 
give  us  all  one  master.  The  Protest  asserts  an  absolute  right 
to  remove  all  persons  from  office  at  pleasure;  and  for  what 
reason?  Because  they  are  incompetent?  Because  they  are 
incapable?  Because  they  are  remiss,  negligent,  or  inattentive? 
No,  Sir;  these  are  not  the  reasons.  But  he  may  discharge  them, 
one  and  all,  simply  because  "he  is  no  longer  willing  to  be 


PRESIDENT  AS  REPRESENTATIVE     391 

responsible  for  their  acts"!  It  insists  on  an  absolute  right  in 
the  President  to  direct  and  control  every  act  of  every  officer  of 
the  government,  except  the  judges.  It  asserts  this  right  of 
direct  control  over  and  over  again.  The  President  may  go 
iiito  the  treasury,  among  the  auditors  and  comptrollers,  and 
direct  them  how  to  settle  every  man's  account;  what  abate- 
ments to  make  from  one,  what  additions  to  another.  He  may 
go  into  the  custom-house,  among  collectors  and  appraisers,  and 
may  control  estimates,  reductions,  and  appraisements.  It  is 
true  that  these  officers  are  sworn  to  discharge  the  duties  of 
their  respective  offices  honestly  and  fairly,  according  to  their 
own  best  abilities ;  it  is  true,  that  many  of  them  are  liable  to 
indictment  for  official  misconduct,  and  others  responsible,  in 
suits  of  individuals,  for  damages  and  penalties,  if  such  official 
misconduct  be  proved;  but  notwithstanding  all  this,  the  Pro- 
test avers  that  all  these  officers  are  but  the  President's  agents; 
that  they  are  but  aiding  him  in  the  discharge  of  his  duties;  that 
he  is  responsible  for  their  conduct,  and  that  they  are  removable 
at  his  will  and  pleasure.  And  it  is  under  this  view  of  his  own 
authority  that  the  President  calls  the  Secretaries  his  Sec- 
retaries, not  once  only,  but  repeatedly.  .  .  . 

Connected,  Sir,  with  the  idea  of  this  airy  and  unreal  respon- 
sibility to  the  public  is  another  sentiment,  which  of  late  we 
hear  frequently  expressed;  and  that  is,  that  the  President  is  the 
direct  representative  of  the  American  people.  This  is  declared 
in  the  Protest  in  so  many  words.  ''The  President,"  it  says,  "is 
the  direct  representative  of  the  American  people."  Now,  Sir, 
this  is  not  the  language  of  the  Constitution.  The  Constitution 
nowhere  calls  him  the  representative  of  the  American  people; 
still  less,  their  direct  representative.  It  could  not  do  so  with 
the  least  propriety.  He  is  not  chosen  directly  by  the  people, 
but  by  a  body  of  electors,  some  of  whom  are  chosen  by  the 
people,  and  some  of  whom  are  appointed  by  the  State  legisla- 
ture. Where,  then,  is  the  authority  for  saying  that  the  Presid- 
ent is  the  direct  representative  of  the  people?  The  Constitution 
calls  the  members  of  the  other  house  Representatives,  and  de- 
clares that  they  shall  be  chosen  by  the  people ;  and  there  are  no 


392  THE  NEW  DEMOCRACY 

other  direct  or  immediate  representatives  of  the  people  in  this 
government.  The  Constitution  denominates  the  President  sim- 
ply the  President  of  the  United  States;  it  points  out  the  com- 
plex mode  of  electing  him,  defines  his  powers  and  duties,  and 
imposes  limits  and  restraints  on  his  authority.  With  these 
powers  and  duties,  and  under  these  restraints,  he  becomes, 
when  chosen,  President  of  the  United  States.  That  is  his  char- 
acter, and  the  denomination  of  his  office.  How  is  it,  then,  that, 
on  this  ofiicial  character,  thus  cautiously  created,  limited,  and 
defined,  he  is  to  engraft  another  and  a  very  imposing  charac- 
ter, namely,  the  character  of  the  direct  representative  of  the 
American  people?  I  hold  this.  Sir,  to  be  mere  assumption, 
and  dangerous  assumption.  If  he  is  the  representative  of  all 
the  American  people,  he  is  the  only  representative  which  they 
all  have.  Nobody  else  presumes  to  represent  all  the  people. 
And  if  he  may  be  allowed  to  consider  himself  as  the  Sole  Re- 
presentative Of  All  The  American  People,  and  is  to  act  under 
no  other  responsibility  than  such  as  I  have  already  described, 
then  I  say.  Sir,  that  the  government  (I  will  not  say  the  people) 
has  already  a  master.  .  .  . 


CPIAPTER   XLIII 

PRESIDENTIAL    INITIATIVE    IN    DETERMINING 
FOREIGN    POLICY 

May  II,  1846. 
Although  President  Polk's  war  message  is  substantially  correct  in  its 
account  of  Slidell's  mission,  certain  important  details  are  slurred  over  and 
somewhat  blurred.  It  is  noteworthy  that,  though  Slidell  was  dispatched 
to  Mexico  in  November,  his  appointment  was  not  confirmed  by  the  Sen- 
ate until  January  20;  that  on  January  12  a  dispatch  was  received  from 
Slidell  which  made  it  probable,  if  not  certain,  that  he  would  not  be 
received  by  the  Mexican  Government;  and  that  on  the  following  day  the 
President  sent  orders  to  General  Taylor  to  advance  to  the  Rio  Grande. 
It  is  difficult  to  resist  the  conclusion  that  the  President  desired  to  force 
the  hand  of  Mexico  and  that  the  alleged  threatened  invasion  of  Texas  by 
Mexican  forces  was  no  more  imminent  then  than  weeks  before.  These 
and  other  neglected  considerations  gave  point  to  Stephens's  attack  upon 
"Polk  the  Mendacious."  The  following  extracts  from  presidential  mes- 
sages indicate  the  novel  powers  assumed  by  the  President  during  the 
interesting  process  of  "conquering  a  peace." 

122.  President  Polk's  War  Messaged 

.  .  .  The  strong  desire  to  establish  peace  with  Mexico  on  lib- 
eral and  honorable  terms,  and  the  readiness  of  this  government 
to  regulate  and  adjust  our  boundary,  and  other  causes  of  differ- 
ence with  that  power,  on  such  fair  and  equitable  principles  as 
would  lead  to  permanent  relations  of  the  most  friendly  nature, 
induced  me  in  September  last  to  seek  the  reopening  of  diplo- 
matic relations  between  the  two  countries.  .  .  .  An  envoy  of 
the  United  States  repaired  to  Mexico,  with  full  powers  to 
adjust  every  existing  difference.  .  .  . 

It  now  becomes  my  duty  to  state  more  in  detail  the  origin, 
progress,  and  failure  of  that  mission.  In  pursuance  of  the  in- 
structions given  in  September  last,  an  inquiry  was  made,  on  the 
13th  of  October,  1845,  in  the  most  friendly  terms,  through  our 
consul  in  Mexico,  of  the  minister  for  foreign  affairs,  whether  the 
Mexican  government  "  would  receive  an  envoy  from  the  United 

^  Richardson,  Messages  and  Papers  of  the  Presidents,  iv,  437-43  passim. 


394  THE  NEW  DEMOCRACY 

States  intrusted  with  full  powers  to  adjust  all  the  questions  in 
dispute  between  the  two  governments;"  with  the  assurance 
that  "should  the  answer  be  in  the  affirmative,  such  an  envoy 
would  be  immediately  despatched  to  Mexico."  The  Mexican 
minister,  on  the  15th  of  October,  gave  an  affirmative  answer  to 
this  inquiry,  requesting,  at  the  same  tune,  that  our  naval  force 
at  Vera  Cruz  might  be  withdrawn,  lest  its  continued  presence 
might  assume  the  appearance  of  menace  and  coercion  pending 
the  negotiations.  This  force  was  immediately  withdrawn.  On 
the  loth  of  November,  1845,  Mr.  John  Slidell,  of  Louisiana, 
was  commissioned  by  me  as  envoy  extraordinary  and  minister 
plenipotentiary  of  the  United  States  to  Mexico,  and  was  in- 
trusted with  full  powers  to  adjust  both  the  questions  of  the 
Texas  boundary  and  of  indemnification  to  our  citizens.  The 
redress  of  the  wrongs  of  our  citizens  naturally  and  inseparably 
blended  itself  with  the  question  of  boundary.  The  settlement 
of  the  one  question,  in  any  correct  view  of  the  subject,  involves 
that  of  the  other.  I  could  not,  for  a  moment,  entertain  the  idea 
that  the  claims  of  our  much  injured  and  long  suffering  citizens, 
many  of  which  had  existed  for  more  than  twenty  years,  should 
be  postponed,  or  separated  from  the  settlement  of  the  boundary 
question. 

[After  setting  forth  Slidell 's  endeavors  to  secure  recognition 
from  Herrera  and  upon  his  overthrow,  from  Paredes,  the  mes- 
sage continues :] 

Under  these  circumstances,  Mr.  Slidell,  in  obedience  to  my 
direction,  addressed  a  note  to  the  Mexican  minister  of  foreign 
relations,  under  date  of  the  ist  of  March  last,  asking  to  be  re- 
ceived by  that  government  in  the  diplomatic  character  to  which 
he  had  been  appointed.  This  minister,  in  his  reply  under  date 
of  the  1 2th  of  March,  reiterated  the  arguments  of  his  predeces- 
sor, and,  in  terms  that  may  be  considered  as  giving  just  grounds 
of  offence  to  the  government  and  people  of  the  United  States, 
denied  the  application  of  Mr.  Slidell.  Nothing,  therefore,  re- 
mained for  our  envoy  but  to  demand  his  passports,  and  return 
to  his  own  country.  ... 

In  my  message  at  the  commencement  of  the  present  session, 


PRESIDENT  AND  FOREIGN  POLICY  395 

I  informed  you  that,  upon  the  earnest  appeal  both  of  the  con- 
gress and  convention  of  Texas,  I  had  ordered  an  efficient  mili- 
tary force  to  take  a  position  "between  the  Nueces  and  the  Del 
Norte."  This  had  become  necessary,  to  meet  a  threatened 
invasion  of  Texas  by  the  Mexican  forces,  for  which  extensive 
military  preparations  had  been  made.  The  invasion  was  threat- 
ened solely  because  Texas  had  determined,  in  accordance  with 
a  solemn  resolution  of  the  Congress  of  the  United  States,  to 
annex  herself  to  our  Union;  and,  under  these  circumstances, 
it  was  plainly  our  duty  to  extend  our  protection  over  her  citi- 
zens and  soil. 

This  force  was  concentrated  at  Corpus  Christi,  and  remained 
there  until  after  I  had  received  such  information  from  Mexico 
as  rendered  it  probable,  if  not  certain,  that  the  Mexican  govern- 
ment would  refuse  to  receive  our  envoy. 

Meantime  Texas,  by  the  final  action  of  our  Congress,  had 
become  an  integral  part  of  our  Union.  The  Congress  of  Texas, 
by  its  act  of  December  19,  1836,  had  declared  the  Rio  del  Norte 
to  be  the  boundary  of  that  republic.  Its  jurisdiction  had  been 
extended  and  exercised  beyond  the  Nueces.  The  country 
between  that  river  and  the  Del  Norte  had  been  represented  in 
the  congress  and  in  the  convention  of  Texas;  had  thus  taken 
part  in  the  act  of  annexation  itself;  and  is  now  included  within 
one  of  our  congressional  districts.  Our  own  Congress  had, 
moreover,  with  great  unanimity,  by  the  act  approved  Decem- 
ber 31,  1845,  recognised  the  country  beyond  the  Nueces  as  a 
part  of  our  territory,  by  including  it  within  our  own  revenue 
system;  and  a  revenue  officer,  to  reside  within  that  district, 
has  been  appointed,  by  and  with  the  advice  and  consent  of  the 
senate.  It  became,  therefore,  of  urgent  necessity  to  provide  for 
the  defence  of  that  portion  of  our  country.  Accordingly,  on 
the  13th  of  January  last,  instructions  were  issued  to  the  general 
in  command  of  these  troops  to  occupy  the  left  bank  of  the  Del 
Norte.  .  .  . 

The  army  moved  from  Corpus  Christi  on  the  nth  of  March, 
and  on  the  28th  of  that  month  arrived  on  the  left  bank  of  the 
Del  Norte,  opposite  to  Matamoras,  where  it  encamped  on  a 


396  THE  NEW  DEMOCRACY 

commanding  position,  which  has  since  been  strengthened  by 
the  erection  of  field  works.  A  depot  has  also  been  established 
at  Point  Isabel,  near  the  Brazos  Santiago,  thirty  miles  in  rear 
of  the  encampment.  The  selection  of  his  position  was  neces- 
sarily confided  to  the  judgment  of  the  general  in  command. 

The  Mexican  forces  at  Matamoras  assumed  a  belligerent 
attitude,  and,  on  the  12th  of  April,  General  Ampudia,  then  in 
command,  notified  General  Taylor  to  break  up  his  camp  within 
twenty-four  hours,  and  to  retire  beyond  the  Nueces  river,  and, 
in  the  event  of  his  failure  to  comply  with  these  demands, 
announced  that  arms,  and  arms  alone,  must  decide  the  ques- 
tion. But  no  open  act  of  hostility  was  committed  until  the  24th 
of  April.  On  that  day,  General  Arista,  who  had  succeeded  to 
the  command  of  the  Mexican  forces,  communicated  to  General 
Taylor  that  "he  considered  hostilities  commenced,  and  should 
prosecute  them."  A  party  of  dragoons,  of  sixty-three  men  and 
officers,  were  on  the  same  day  despatched  from  the  American 
camp  up  the  Rio  del  Norte,  on  its  left  bank,  to  ascertain  whe- 
ther the  Mexican  troops  had  crossed,  or  were  preparing  to 
cross,  the  river,  "became  engaged  with  a  large  body  of  these 
troops,  and,  after  a  short  affair,  in  which  some  sixteen  were 
killed  and  wounded,  appear  to  have  been  surrounded  and  com- 
pelled to  surrender." 

The  grievous  wrongs  perpetrated  by  Mexico  upon  our  citi- 
zens throughout  a  long  period  of  years  remain  unredressed; 
and  solemn  treaties,  pledging  her  public  faith  for  this  redress, 
have  been  disregarded.  A  government  either  unable  or  unwill- 
ing to  enforce  the  execution  of  such  treaties,  fails  to  perform 
one  of  its  plainest  duties. 

Our  commerce  with  Mexico  has  been  almost  annihilated.  It 
was  formerly  highly  beneficial  to  both  nations;  but  our  mer- 
chants have  been  deterred  from  prosecuting  it  by  the  system 
of  outrage  and  extortion  which  the  Mexican  authorities  have 
pursued  against  them,  whilst  their  appeals  through  their  own 
government  for  indemnity  have  been  made  in  vain.  Our  for- 
bearance has  gone  to  such  an  extreme  as  to  be  mistaken  in  its 
character.  Had  we  acted  with  vigor  in  repelling  the  insults  and 


PRESIDENT  AND  FOREIGN  POLICY   397 

redressing  the  injuries  inflicted  by  Mexico  at  the  commence- 
ment, we  should  doubtless  have  escaped  all  the  difficulties  in 
which  we  are  now  involved. 

Instead  of  this,  however,  we  have  been  exerting  our  best 
efforts  to  propitiate  her  good-will.  Upon  the  pretext  that 
Texas,  a  nation  as  independent  as  herself,  thought  proper  to 
unite  its  destinies  with  our  own,  she  has  affected  to  believe  that 
we  have  severed  her  rightful  territory,  and  in  official  proclama- 
tions and  manifestoes  has  repeatedly  threatened  to  make  war 
upon  us,  for  the  purpose  of  reconquering  Texas.  In  the  mean- 
time, we  have  tried  every  effort  at  reconciliation.  The  cup  of 
forbearance  had  been  exhausted,  even  before  the  recent  in- 
formation from  the  frontier  of  the  Del  Norte.  But  now,  after 
reiterated  menaces,  Mexico  has  passed  the  boundary  of  the 
United  States,  has  invaded  our  territory,  and  shed  American 
blood  upon  the  American  soil.  She  has  proclaimed  that  hostili- 
ties have  commenced,  and  that  the  two  nations  are  now  at  war. 

As  war  exists,  and,  notwithstanding  all  our  efforts  to  avoid  it, 
exists  by  the  act  of  Mexico  herself,  we  are  called  upon  by  every 
consideration  of  duty  and  patriotism  to  vindicate  with  decision 
the  honor,  the  rights,  and  the  interests  of  our  country.  .  .  . 

In  further  vindication  of  our  rights,  and  defence  of  our  terri- 
tory, I  invoke  the  prompt  action  of  Congress  to  recognise  the 
existence  of  the  war,  and  to  place  at  the  disposition  of  the 
Executive  the  means  of  prosecuting  the  war  with  vigor,  and 
thus  hastening  the  restoration  of  peace.  .  .  . 

123.  ^  Whig  View  oj  the  Origin  of  the  War.^ 

My  first  proposition  is,  that  the  immediate  cause  of  hostili- 
ties between  our  army  and  the  Mexican  forces,  was  the  advance 
movement  from  Corpus  Christi,  upon  the  Nueces  river,  to 
Matamoras,  upon  the  Rio  Grande  or  Del  Norte.  And,  to  sus- 
tain this,  I  need  but  refer  to  the  history  of  the  case,  given  by 
the  President  himself  in  the  documents  accompanying  his 
message  to  the  House,  when  he  asked  us  to  recognize  a  state  of 

^  Speech  of  Representative  Stephens  in  the  House,  June  i6,  1846. 
Cleveland,  Alexander  H.  Stephens,  304-16  passim. 


398  THE  NEW  DEMOCRACY 

war  with  Mexico;  a  singular  request,  by-the-by,  for  the  Presi- 
dent to  make,  when  the  Constitution  gives  Congress  the  sole 
power  to  declare  war.  Perhaps  some  gentlemen  may  suppose 
that  that  clause  in  the  Constitution  simply  means  that  when 
the  President  gets  us  into  war,  it  is  the  business  of  Congress 
then  to  make  it  known  —  to  declare  it  —  or  recognize  the  fact. 
This,  however,  is  not  my  understanding  of  it.  Congress  alone 
has  the  right  and  power  to  engage  in  war.  The  President  has 
the  right  to  repel  hostiHties;  but  not  by  his  policy  with  other 
nations  to  bring  on  and  involve  the  country  in  a  war  without 
consultation  with  Congress.  .  .  . 

...  I  come  now  to  say,  what  I  fearlessly  assert,  that  the 
President  had  no  right,  no  power,  legally,  to  order  the  military 
occupation  of  the  disputed  territory  on  the  Rio  Grande  without 
authority  from  Congress.  He  had  no  right  or  power  to  send  the 
army  beyond  that  country  over  which  Texas  had  established 
her  jurisdiction.  The  boundary  between  Texas  and  Mexico  — 
I  mean  Texas  as  an  independent  State  after  her  revolution  — 
was  never  settled.  Before  the  revolution  the  river  Nueces  was 
the  southern  boundary  of  the  department  of  Texas.  Between 
that  river  and  the  Rio  Grande  lay  the  districts  of  Tamaulipas, 
Coahuila,  and  others.  During  and  after  the  revolution,  a  por- 
tion of  this  country  on  the  south  of  the  Nueces,  about  Corpus 
Christi,  went  with  Texas  and  adhered  to  the  new  government ; 
the  other  portion,  hang  on  the  Rio  Grande,  adhered  to  the  old 
government;  and  though  Texas,  after  her  declaration,  defined 
her  boundary  to  be  the  Rio  Grande,  yet  she  never  successfully 
established  her  jurisdiction  to  that  extent.  Between  Corpus 
Christi  and  the  Mexican  settlements  on  the  Rio  Grande  is  an 
immense  desert  or  waste,  where  nobody  lives.  The  first  settle- 
ments to  the  south  of  that  unoccupied  region  are  on  the  Rio 
Grande,  or  near  it,  and  have  continued  subject  to  the  laws  of 
Mexico.  The  people  are  Mexicans  or  Spaniards.  .  .  . 

But  it  is  useless  to  multiply  authority  upon  this  point.  All 
this  was  well  known  at  the  time  of  the  passage  of  the  resolution 
of  annexation;  and  hence  the  resolution  was  guarded  so  as  to 
cover  only  so  much  territory  as  was  ^^ properly  included  within, 


PRESIDENT  AND  FOREIGN  POLICY  399 

and  rightfully  belonged  to  the  Republic  of  Texas,''  reserving  the 
question  of  boundary  to  be  settled  and  adjusted  between  this 
government  and  Mexico  by  negotiation,  and  not  by  arms;  and 
Congress  positively  refused  to  pass  any  measure  of  that  sort 
which  fixed  the  boundary  at  the  Rio  Grande  or  Del  Norte;  and 
I  venture  to  say  that  no  resolution  so  fixing  the  boundary 
could  have  passed  this  or  the  other  House.  And  now  what  I 
have  got  to  say  is  this:  Congress  having  failed  to  establish  a 
boundary  in  that  quarter,  the  President  could  not  undertake 
to  do  it.  The  limits  or  boundaries  of  a  country  can  be  fixed  in 
two  ways  only:  one  is  by  negotiation,  and  the  other  is  by 
the  sword.  The  President  by  himself  can  do  neither.  He  may 
make  the  initiative  in  the  former  case;  but  Congress  can  alone 
constitutionally  draw  the  sword  for  any  purpose.  I  grant,  if 
Mexico  would  not  negotiate,  would  not  treat,  would  not  come 
to  any  understanding  in  a  friendly  manner  where  the  dividing 
line  should  be,  where  their  jurisdiction  should  end  and  ours 
commence,  that  we  would  then  have  a  right  to  make  a  limit 
for  ourselves,  and  a  right,  by  force  of  arms,  to  establish  that 
limit  or  line.  But,  sir,  this  is  a  right  that  Congress  only  can 
constitutionally  exercise.  The  President  cannot  do  it.  .  .  . 

.  .  .  But  some  one  asks  me  what  was  the  President  to  do? 
How  was  he  to  know  where  to  stop,  as  there  was  no  fixed  line? 
I  answer,  his  duty  was  a  plain  one.  It  was  to  keep  the  army 
within  that  portion  of  the  territory  which  "rightfully  belonged 
to  Texas,"  or  over  which  she  had  estabhshed  her  jurisdiction 
and  supremacy,  where  her  laws  extended  and  were  enforced, 
and  where  the  people  acknowledged  her  government.  Whether 
that  was  east  or  west  of  the  Nueces  made  no  difference.  But 
he  had  no  authority  to  order  them  beyond  such  limits.  .  .  . 

124.  President  Polk  to  Congress.^ 

It  is  well  known  that  the  only  indemnity  which  it  is  in  the 
power  of  Mexico  to  make  in  satisfaction  of  the  just  and  long- 
deferred  claims  of  our  citizens  against  her  and  the  only  means 

*  December  7, 1847.  Richardson,  Messages  and  Papers  of  the  Presidents, 
IV,  536-38. 


400  THE  NEW  DEMOCRACY 

by  which  she  can  reimburse  the  United  States  for  the  expenses 
of  the  war  is  a  cession  to  the  United  States  of  a  portion  of  her 
territory.  Mexico  has  no  money  to  pay,  and  no  other  means 
of  making  the  required  indemnity.  If  we  refuse  this,  we  can 
obtain  nothing  else.  To  reject  indemnity  by  refusing  to  accept 
a  cession  of  territory  would  be  to  abandon  all  our  just  demands, 
and  to  wage  the  war,  bearing  all  its  expenses,  without  a  pur- 
pose or  definite  object. 

A  state  of  war  abrogates  treaties  previously  existing  between 
the  belligerents  and  a  treaty  of  peace  puts  an  end  to  all  claims 
for  indemnity  for  tortious  acts  committed  under  the  authority 
of  one  government  against  the  citizens  or  subjects  of  another 
unless  they  are  provided  for  in  its  stipulations.  A  treaty  of 
peace  which  would  terminate  the  existing  war  without  pro- 
viding for  indemnity  would  enable  Mexico,  the  acknowledged 
debtor  and  herself  the  aggressor  in  the  war,  to  relieve  herself  from 
her  just  liabilities.  By  such  a  treaty  our  citizens  who  hold  just  de- 
mands against  her  would  have  no  remedy  either  against  Mexico  or 
their  own  Government.  Our  duty  to  these  citizens  must  forever 
prevent  such  a  peace,  and  no  treaty  which  does  not  provide  ample 
means  of  discharging  these  demands  can  receive  my  sanction. 

A  treaty  of  peace  should  settle  all  existing  differences  be- 
tween the  two  countries.  If  an  adequate  cession  of  territory 
should  be  made  by  such  a  treaty,  the  United  States  should 
release  Mexico  from  all  her  liabilities  and  assume  their  payment 
to  our  own  citizens.  If  instead  of  this  the  United  States  were  to 
consent  to  a  treaty  by  which  Mexico  should  again  engage  to 
pay  the  heavy  amount  of  indebtedness  which  a  just  indemnity 
to  our  Government  and  our  citizens  would  impose  on  her,  it  is 
notorious  that  she  does  not  possess  the  means  to  meet  such  an 
undertaking.  From  such  a  treaty  no  result  could  be  anticipated 
but  the  same  irritating  disappointments  which  have  hereto- 
fore attended  the  violations  of  similar  treaty  stipulations  on  the 
part  of  Mexico.  Such  a  treaty  would  be  but  a  temporary  cessa- 
tion of  hostilities,  without  the  restoration  of  the  friendship  and 
good  understanding  which  should  characterize  the  future 
intercourse  between  the  two  countries.. 


PRESIDENT  AND  FOREIGN  POLICY  401 

That  Congress  contemplated  the  acquisition  of  territorial 
indemnity  when  that  body  made  provision  for  the  prosecution 
of  the  war  is  obvious.  Congress  could  not  have  meant  when,  in 
May,  1846,  they  appropriated  $10,000,000  and  authorized  the 
President  to  employ  the  militia  and  naval  and  military  forces 
of  the  United  States  and  to  accept  the  services  of  50,000  volun- 
teers to  enable  him  to  prosecute  the  war,  and  when,  at  their 
last  session,  and  after  our  Army  had  invaded  Mexico,  they 
made  additional  appropriations  and  authorized  the  raising  of 
additional  troops  for  the  same  purpose,  that  no  indemnity  was 
to  be  obtained  from  Mexico  at  the  conclusion  of  the  war;  and 
yet  it  was  certain  that  if  no  Mexican  territory  was  acquired 
no  indemnity  could  be  obtained.  It  is  further  manifest  that 
Congress  contemplated  territorial  indemnity  from  the  fact 
that  at  their  last  session  an  act  was  passed,  upon  the  Executive 
recommendation,  appropriating  $3,000,000  with  that  express 
object.  This  appropriation  was  made  "to  enable  the  President 
to  conclude  a  treaty  of  peace,  limits,  and  boundaries  with  the 
RepubHc  of  Mexico,  to  be  used  by  him  in  the  event  that  said 
treaty,  when  signed  by  the  authorized  agents  of  the  two  Govern- 
ments and  duly  ratified  by  Mexico,  shall  call  for  the  expendi- 
ture of  the  same  or  any  part  thereof."  The  object  of  asking 
this  appropriation  was  distinctly  stated  in  the  several  messages 
on  the  subject  which  I  communicated  to  Congress.  Similar 
appropriations  made  in  1803  and  1806,  which  were  referred  to, 
were  intended  to  be  applied  in  part  consideration  for  the  cession 
of  Louisiana  and  the  Floridas.  In  like  manner  it  was  antici- 
pated that  in  settling  the  terms  of  a  treaty  of  "  limits  and  bound- 
aries" with  Mexico  a  cession  of  territory  estimated  to  be  of 
greater  value  than  the  amount  of  our  demands  against  her 
might  be  obtained,  and  that  the  prompt  payment  of  this  sum 
in  part  consideration  for  the  territory  ceded,  on  the  conclusion 
of  a  treaty  and  its  ratification  on  her  part,  might  be  an  induce- 
ment with  her  to  make  such  a  cession  of  territory  as  would  be 
satisfactory  to  the  United  States;  and  although  the  failure  to 
conclude  such  a  treaty  has  rendered  it  unnecessary  to  use  any 
part  of  the  $3,000,000  appropriated  by  that  act,  and  the  entire 


402  THE  NEW  DEMOCRACY 

sum  remains  in  the  Treasury,  it  is  still  applicable  to  that  object 
should  the  contingency  occur  making  such  application  proper. 
The  doctrme  of  no  territory  is  the  doctrine  of  no  indemnity, 
and  if  sanctioned  would  be  a  public  acknowledgment  that  our 
country  was  wrong  and  that  the  war  declared  by  Congress 
with  extraordinary  unanimity  was  unjust  and  should  be  aban- 
doned —  an  admission  unfounded  in  fact  and  degrading  to  the 
national  character.  .  .  . 

125.  President  Polk  to  the  House  of  Representatives.^ 

In  answer  to  the  resolutions  of  the  House  of  Representatives 
of  the  loth  instant,  requestmg  information  in  relation  to  New 
Mexico  and  California,  I  communicate  herewith  reports  from 
the  Secretary  of  State,  the  Secretary  of  the  Treasury,  the 
Secretary  of  War,  and  the  Secretary  of  the  Navy,  with  the 
documents  which  accompany  the  same.  These  reports  and 
documents  contain  information  upon  the  several  points  of 
inquiry  embraced  by  the  resolutions.  .  .  . 

The  resolutions  request  information  in  regard  to  the  exist- 
ence of  civil  governments  in  New  Mexico  and  California,  their 
"form  and  character,"  by  "whom  instituted,"  by  "  what  author- 
ity," and  how  they  are  "maintained  and  supported."  .  .  . 

The  temporary  governments  authorized  were  instituted  by 
virtue  of  the  rights  of  war.  The  power  to  declare  war  against 
a  foreign  country,  and  to  prosecute  it  according  to  the  general 
laws  of  war,  as  sanctioned  by  civihzed  nations,  it  will  not 
be  questioned,  exists  under  our  Constitution.  When  Congress 
has  declared  that  war  exists  with  a  foreign  nation,  "the  general 
laws  of  war  apply  to  our  situation,"  and  it  becomes  the  duty  of 
the  President,  as  the  constitutional  "  Commander  in  Chief  of 
the  Army  and  Navy  of  the  United  States,"  to  prosecute  it. 

In  prosecuting  a  foreign  war  thus  duly  declared  by  Congress, 
we  have  the  right,  by  "conquest  and  military  occupation,"  to 
acquire  possession  of  the  territories  of  the  enemy,  and,  during 
the  war,  to  "exercise  the  fullest  rights  of  sovereignty  over  it." 

^  July  24,  1848.  Richardson,  Messages  and  Papers  of  the  Presidents, 
IV,  594-96  passim. 


PRESIDENT  AND  FOREIGN  POLICY  403 

The  Sovereignty  of  the  enemy  is  in  such  case  "suspended," 
and  his  laws  can  "no  longer  be  rightfully  enforced"  over  the 
conquered  territory  "or  be  obligatory  upon  the  inhabitants 
who  remain  and  submit  to  the  conqueror.  By  the  surrender  the 
inhabitants  pass  under  a  temporary  allegiance"  to  the  con- 
queror, and  are  "bound  by  such  laws,  and  such  only,  as"  he 
may  choose  to  recognize  and  impose.  "  From  the  nature  of  the 
case,  no  other  laws  could  be  obligatory  upon  them,  for  where 
there  is  no  protection  or  allegiance  or  sovereignty  there  can  be 
no  claim  to  obedience."  These  are  well-established  principles 
of  the  laws  of  war,  as  recognized  and  practised  by  civilized 
nations,  and  they  have  been  sanctioned  by  the  highest  judicial 
tribunal  of  our  own  country. 

The  orders  and  instructions  issued  to  the  officers  of  our  Army 
and  Navy,  applicable  to  such  portions  of  the  Mexican  territory 
as  had  been  or  might  be  conquered  by  our  arms,  were  in  strict 
conformity  to  these  principles.  .  .  . 

It  is  from  the  same  source  of  authority  that  we  derive  the 
unquestioned  right,  after  the  war  has  been  declared  by  Con- 
gress, to  blockade  the  ports  and  coast  of  the  enemy,  to  capture 
his  towns,  cities,  and  provinces,  and  to  levy  contributions  upon 
him  for  the  support  of  our  Army.  Of  the  same  character  with 
these  is  the  right  to  subject  to  our  temporary  military  govern- 
ment the  conquered  territories  of  our  enemy.  They  are  all 
belligerent  rights,  and  their  exercise  is  as  essential  to  the 
successful  prosecution  of  a  foreign  war  as  the  right  to  fight 
battles. 

New  Mexico  and  Upper  California  were  among  the  terri- 
tories conquered  and  occupied  by  our  forces,  and  such  tem- 
porary governments  were  established  over  them.  They  were 
established  by  the  officers  of  our  Army  and  Navy  in  command, 
in  pursuance  of  the  orders  and  instructions  accompanying  my 
message  to  the  House  of  Representatives  of  December  22, 
1846.  .  .  . 

On  the  conclusion  and  exchange  of  ratifications  of  a  treaty 
of  peace  with  Mexico,  which  was  proclaimed  on  the  4th  instant, 
these  temporary  governments  necessarily  ceased  to  exist.  .  .  . 


404  THE  NEW  DEMOCRACY 

126.  President  Polk  to  Congress} 

Upon  the  exchange  of  ratifications  of  the  treaty  of  peace  with 
Mexico,  on  the  30th  of  May  last,  the  temporary  governments 
which  had  been  established  over  New  Mexico  and  Cahfornia 
by  our  mihtary  and  naval  commanders  by  virtue  of  the  rights 
of  war  ceased  to  derive  any  obligatory  force  from  that  source 
of  authority,  and  having  been  ceded  to  the  United  States,  all 
government  and  control  over  them  under  the  authority  of 
Mexico  had  ceased  to  exist.  Impressed  with  the  necessity  of 
establishing  Territorial  governments  over  them,  I  recommended 
the  subject  to  the  favorable  consideration  of  Congress  in  my 
message  communicating  the  ratified  treaty  of  peace,  on  the 
6th  of  July  last,  and  invoked  their  action  at  that  session. 
Congress  adjourned  without  making  any  provision  for  their 
government.  The  inhabitants  b}'  the  transfer  of  their  country 
had  become  entitled  to  the  benefit  of  our  laws  and  Constitu- 
tion, and  yet  were  left  without  any  regularly  organized  govern- 
ment. Since  that  time  the  very  limited  power  possessed  by  the 
Executive  has  been  exercised  to  preserve  and  protect  them  from 
the  inevitable  consequences  of  a  state  of  anarchy.  The  only 
government  which  remained  was  that  established  by  the  mili- 
tary- authority  during  the  war.  Regarding  this  to  be  a  de facto 
government,  and  that  by  the  presumed  consent  of  the  inhabit- 
ants it  might  be  continued  temporarily,  they  were  advised  to 
conform  and  submit  to  it  for  the  short  intervening  period  before 
Congress  would  again  assemble  and  could  legislate  on  the 
subject.  .  .  . 

^  December  5,  1848.  Richardson,  Messages  and  Papers  of  the  Presi- 
dents, rv,  638. 


PART   SEVEN.    SLAVERY  AND  THE 
CONSTITUTION 

CHAPTER  XLIV 

SLAVERY    IN   THE   TERRITORIES 

From  the  beginning  of  the  war,  the  acquisition  of  territory  from  Mexico, 
whether  as  indemnity  or  conquest,  was  earnestly  desired  by  the  adminis- 
tration at  Washington.  The  prospect  opened  up  long  vistas  of  trouble. 
With  every  extension  of  territory  the  slavery  question  was  bound  to  recur. 
President  Polk's  request  for  an  appropriation  for  any  cession  of  territory 
which  Mexico  might  make  as  "indemnity,"  was  the  signal  for  an  aggres- 
sive move  on  the  part  of  the  anti-slavery  forces.  Should  such  an  accession 
of  territory  fall  to  the  United  States,  they  w^ere  bound  that  it  should  be 
made  free  soil.  To  this  end  they  attached  the  Wilmot  Proviso  to  succes- 
sive bills  authorizing  the  desired  appropriation.  The  House  favored  the 
Proviso,  but  the  Senate  would  have  none  of  it.  Between  1847  and  1850  at 
least  four  different  ways  of  dealing  with  the  vexing  question  of  slavery 
in  the  territories  were  proposed.  One  was  presented  by  the  South  Carolina 
radicals  led  by  Calhoun  and  Rhett;  a  second  was  reported  by  a  committee 
of  which  Senator  Clayton  of  Delaware  was  chairman ;  a  third  was  offered 
by  Cass  and  promptly  dubbed  "squatter  sovereignty";  and  a  fourth  was 
finally  embodied  in  the  Utah  and  New  Mexico  Territorial  bills  of  1850. 

127.  The  Wilmot  Proviso} 

Provided,  That,  as  an  express  and  fundamental  condition  to 
the  acquisition  of  any  territory  from  the  Repubhc  of  Mexico 
by  the  United  States,  by  virtue  of  any  treaty  which  may  be 
negotiated  between  them,  and  to  the  use  by  the  Executive 
of  the  moneys  herein  appropriated,  neither  slavery  nor  invol- 
untary servitude  shall  ever  exist  in  any  part  of  said  terri- 
tory, except  for  crime,  whereof  the  party  shall  first  be  duly 
convicted.  .  .  . 

^  Proposed  by  Representative  Wilmot  of  Pennsylvania,  August  8, 1846, 
as  an  amendment  to  the  Two  Million  Dollar  Bill. 


4o6    SLAVERY  AND  THE  CONSTITUTION 

128.  The  Rhett-Calhoun  Doctrine} 

The  question  made  by  the  bill  is,  has  Congress  the  power  of 
excluding  the  people  of  the  southern  States  from  entering  and 
colonizing  with  their  slaves  the  territories  of  the  United  States? 
The  gentleman  from  Indiana,  [Mr.  Pettit,]  and  others,  affirm 
that  it  has,  because  the  sovereignty  of  the  Territories  is  in  the 
Government  of  the  United  States.  .  .  , 

Now,  let  us  examine,  first,  before  we  ascend  to  general  prin- 
ciples, the  clause  of  the  Constitution,  on  which  the  gentleman 
from  Indiana  relies,  to  show  that  sovereignty  over  the  terri- 
tories, is  in  the  Government  of  the  United  States.  "The  Con- 
gress shall  have  power  to  dispose  of,  and  make  all  needful  rules 
and  regulations  respecting,  the  territory  or  other  property 
belongmg  to  the  United  States."  Here,  in  the  first  place, 
nothing  is  said  about  the  Government  of  the  United  States. 
Whatever  power  is  conceded  by  the  clause  is  conceded  to  "the 
Congress."  .  .  .  Suppose  Congress  to  be  the  Government, 
what  power  does  the  clause  convey?  "  To  dispose  of,  and  make 
all  needful  rules  and  regulations  concerning,  the  territory  or 
other  property  belonging  to  the  United  States."  Does  the 
power  "to  dispose  of  and  make  all  needful  rules  and  regula- 
tions," imply  sovereignty?  Mark,  sir,  how  far  short  this 
phraseology  is  m  its  scope  of  that  other  clause  in  the  Consti- 
tution which  relates  to  "the  other  property"  of  the  United 
States  —  the  forts,  arsenals,  magazines,  and  dock  yards.  Over 
,  these,  and  over  this  District,  Congress  "is  to  exercise  exclusive 
legislation  in  all  cases  whatsoever."  Does  not  the  clause  relate 
to  the  territory  only  as  property,  and  confer  only  powers 
necessary  for  its  disposition  and  control  as  property?  It  speaks 
of  the  territories  in  connexion  with  the  "other  property"  of 
the  United  States.  Congress  can  sell  the  lands  lying  within  the 
territory,  and,  to  secure  purchasers  and  settlers  in  their  per- 
sons and  property,  they  can  make  "all  needful  rules  and  regu- 

^  Speech  of  Representative  Rhett  in  the  House,  January  15,  1847. 
Congressional  Globe,  29  Cong.,  2  Sess.,  App.,  244-46  passim.  The  resolu- 
tions of  Calhoun,  to  the  same  purport,  are  in  the  Congressional  Globe,  29 
Cong.,  2  Sess.,  455. 


I 


SLAVERY  IN  THE  TERRITORIES      407 

lations,"  establish  territorial  governments,  and  pass  laws.  .  .  . 
But  the  clause  itself  directly  repudiates  the  idea  that  either 
Congress  or  the  Government  have  any  property,  much  less 
sovereignty  over  our  territories.  Its  words  are,  "territory  and 
other  property  belonging  to  the  United  States."  Here  is  a  direct 
affirmation  that  our  territory  does  not  '^ belong"  either  to  Con- 
gress or  the  Government.  Now,  although  it  does  not  follow 
that  where  there  is  property  (for  property  may  belong  to  indi- 
viduals) there  is  sovereignty;  yet  where  there  is  no  property, 
over  an  unsettled  country,  there  cannot  be  sovereignty.  The 
"supreme  ultimate  authority"  cannot  exist  where  there  is  nei- 
ther the  inferior  right  of  property,  which  exists  in  individuals, 
or  the  higher  right  by  the  eminent  domain.  The  clause,  how- 
ever, does  not  stop  at  negativing,  by  imphcation,  the  idea  that 
the  Government  has  the  sovereignty  over  our  territories,  but 
it  directly  asserts  where  the  property  and  the  sovereignty  over 
them  are  —  '' belonging  to  the  United  States."  .  .  . 

It  declares,  that  the  territories  belong  to  the  United  States. 
They  are  tenants  in  common,  or  joint  proprietors,  and  co- 
sovereigns  over  them.  As  co-sovereigns  they  have  agreed,  in 
their  common  compact,  the  Constitution,  that  their  agent, 
the  General  Government,  "may  dispose  of,  and  make  all  need- 
ful rules  and  regulations,"  with  respect  to  them;  but,  beyond 
this,  they  are  not  limited  or  limitable  in  their  rights.  Their 
sovereignty,  unalienated  and  unimpaired  by  this  mutual  con- 
cession to  each  other,  exists  in  all  its  plenitude  over  our  terri- 
tories; as  much  so,  as  within  the  limits  of  the  States  themselves. 
Yet  there  can  be  no  conflict;  for  none  of  the  States  can  make 
any  "rules  and  regulations"  separately,  within  the  territories, 
which  may  bring  them  in  conflict.  The  "  rules  and  regulations  " 
prevailing,  will  be  made  by  all,  and  obligatory  on  all,  through 
their  common  agency,  the  Government  of  the  United  States. 
The  only  effect,  and  probably  the  only  object  of  their  reserved 
sovereignty,  is,  that  it  secures  to  each  State  the  right  to  enter 
the  territories  with  her  citizens,  and  settle  and  occupy  them 
with  their  property  —  with  whatever  is  recognised  as  property 
by  each  State.  The  ingress  of  the  citizen,  is  the  ingress  of  his 


4o8    SLAVERY  AND  THE  CONSTITUTION 

sovereign,  who  is  bound  to  protect  him  in  his  settlement.  It 
matters  not,  whether  he  carries  those  who  are  slaves  or  not. 
He  is  not  responsible  to  any  of  the  co-sovereigns,  for  the  nature 
of  this  property.  That  is  an  affair  between  him  and  his  State. 
Nor  can  the  other  States  have  any  just  ground  of  complaint, 
because  the  southern  States  occupy  a  portion  of  the  territory 
common  to  them  with  their  slaves.  Did  not  this  institution 
exist,  when  they  made  the  compact  of  union  with  them?  Will 
not  every  foot  of  territory  acquired  be  purchased  by  their  com- 
mon blood  or  treasure?  And  do  they  not  know,  that  the  south- 
em  States  must  enter  it  with  their  slaves,  or  not  at  all?  Nay, 
more,  that  in  vast  regions,  where  the  Anglo-Saxon  race  cannot 
cultivate  the  soil,  they  must  be  cultivated  by  a  southern 
planter,  or  be  left  a  wilderness?  In  exercising  a  common  right 
over  a  common  property,  the  southern  States  only  do  what  the 
other  States  have  also  a  right  to  do,  without  giving  any  just 
cause  for  pleading  surprise  or  injustice.  But  it  will  be  a  sur- 
prise —  it  will  be  a  strange  injustice,  if  a  portion  of  the  States, 
whether  free  or  slave,  shall  presume  to  set  up  their  will  as 
supreme  over  the  territories,  and  through  Congress,  or  any 
other  instrumentality,  shall  attempt  to  exclude  any  of  these 
co-States  from  possessing  and  colonizing  them.  This  would 
practically  be  to  assert,  that  the  sovereignty  over  the  terri- 
tories is  not  in  all  the  States,  but  in  the  excluding  portion 
only.  .  .  . 

129.   The  Law  of  the  Acquired  Territories.^ 

To  be  understood  more  clearly,  I  will  read  the  terms  of  the 
bill  itself,  so  far  as  it  relates  to  slavery  in  New  Mexico  and 
California.  It  will  be  seen  that  all  legislation  by  the  Territorial 
Governments  "  respecting  the  prohibition  or  establishment  of 
African  slavery"  was  to  be  prohibited;  and  all  questions  relat- 
ing to  titles  to  slaves  there,  or  their  right  to  freedom,  was  to  be 
left  ultimately  to  the  decision  of  the  Supreme  Court  of  the 
United  States.  .  .  . 

^  Representative  Stephens  on  the  Clayton  Compromise,  August  7, 
1848.  Congressional  Globe,  30  Cong.,  i  Sess.,  App.,  1104-06  passim. 


SLAVERY  IN  THE  TERRITORIES      409 

The  bill  contains  nothing  else  which  bears  materially  upon 
the  subject  of  slavery.  It  merely  prohibits  the  Territorial 
Government  from  passing  any  law  upon  the  subject ;  and  leaves 
the  southern  man,  who  may  be  inclined  to  go  there  with  his 
slaves,  to  contest  his  rights  to  the  best  of  his  abilities  with  the 
courts  of  the  Territory  in  the  first  instance,  and  then,  if  he 
chooses,  with  the  Supreme  Court  of  the  Union.  .  .  . 

I  set  out,  then,  by  stating,  that  according  to  the  best,  ablest, 
and  most  approved  writers  on  public  law,  and  according  to  the 
decision  of  the  courts  in  England  in  analogous  cases,  and  ac- 
cording to  the  repeated  decisions  of  our  own  Supreme  Court,  to 
which  this  bill  proposed  to  refer  this  matter,  (in  the  absence  of 
such  legislation  as  I  have  alluded  to,)  the  law  by  which  the 
courts  would  decide  questions  of  slavery  there  is  the  law  which 
was  in  force  in  New  Mexico  and  California  upon  that  subject  at 
the  time  of  the  conquest.  .  .  . 

For  this  purpose  I  refer,  first,  to  the  opinion  given  by  Chief 
Justice  Marshall  in  the  case  of  the  American  Insurance  Com- 
pany et  al.  vs.  Canter,  ist  Peters,  542.  In  this  case  that  learned 
judge  used  the  following  language:  [  See  No.  73  above.] 

But,  sir,  this  principle  has  been  repeatedly  decided  by  the  same 
tribunal.  I  have  another  case  before  me,  in  12  Peters'  Reports, 
page  410,  in  which  the  same  doctrine  is  held,  and  a  long  list  of 
cases  cited,  in  which  it  is  also  affirmed.  This  is  the  case  of 
Strother  vs.  Lucas.  .  .  . 

Here,  again,  is  a  clear  and  distinct  recognition  of  the  same 
principle,  with  the  declaration  that  the  "laws,  whether  in 
writing  or  evidenced  by  the  usage  and  custom  of  the  conquered 
or  ceded  country,  continue  in  force  till  altered  by  the  new 
sovereign."  .  .  . 

And  now,  Mr.  Speaker,  if  such  be  the  decisions  of  our  own 
Supreme  Court  upon  this  point,  as  I  presume  no  gentleman 
upon  this  floor  will  venture  to  gainsay  or  deny,  there  is  but 
one  other  question  left,  and  that  is,  what  was  the  law  upon 
the  subject  of  slavery  in  California  or  New  Mexico  at  the  time 
of  their  conquest?  This  is  an  important  question.  The  whole 
merits  of  the  case  turn  upon  it.    And  upon  this  point,  I  sup- 


410    SLAVERY  AND  THE  CONSTITUTION 

pose,  there  can  be  no  doubt.  Slavery  was  abolished  there  in 
1829.  .  .  . 

I  take  it  for  granted  that  nobody  will  deny  that  slavery  was 
abolished  in  California  and  New  Mexico  at  the  time  of  their 
conquest  by  our  arms.  If  a  slave  at  that  time  had  brought  an 
action  for  hi§  freedom  against  his  master  before  the  courts  of 
the  country,  does  any  man  doubt  but  that  the  courts  under  the 
law  then  in  force  would  have  declared  him  to  be  free?  And  as 
our  court  has  decided  that  in  all  such  cases  the  laws  of  the  ac- 
quired territory  in  force  at  the  time  of  the  acquisition,  shall 
remain  in  force  as  the  law  of  the  place  until  altered  by  com- 
petent authority,  can  any  man  doubt  that  they  would  decide 
the  question  just  as  the  Mexican  courts  would  have  decided 
it  at  that  time?  .  .  . 

.  .  .  The  Constitution  recognizes  slavery  in  Tennessee  and 
Georgia,  and  in  all  the  States  where  slavery  exists  by  law ;  but  it 
does  not  recognize  it  in  New  York  or  Ohio,  or  in  any  State 
where  it  is  prohibited  by  the  law  of  the  State,  except  so  far  as  it 
provides  for  the  recapture  of  runaway  slaves.  ...  If  my  slave 
escapes  and  gets  into  a  free  State,  the  Constitution  secures  me 
the  right  of  pursuing  and  retaking  him :  but  if  I  voluntarily  take 
my  slave  into  a  State  where  slavery  by  law  is  prohibited,  I 
have  no  right  to  retake  him;  he  becomes  free.  No  man  will 
question  this.  And  if  slavery  is  prohibited  by  the  local  law  of 
the  newly  acquired  territor>%  the  only  guarantee  the  Constitu- 
tion affords  the  slaveholder  is  the  right  of  recapture  if  he 
escapes  and  gets  into  those  Territories.  .  .  . 

The  Constitution  secures  to  all  the  citizens  of  all  the  States 
and  Territories  of  the  Union  the  rights  to  which  they  are  en- 
titled by  the  laws  of  the  place.  If  Virginia  or  Georgia  should 
abolish  slavery,  the  Constitution  would  no  more  reestablish  it 
there  than  it  has  reestablished  it  in  Pennsylvania,  New  York, 
and  other  States  where  it  has  been  abolished.  The  Constitution 
no  more  carries  the  local  law  of  slavery  of  any  State  into  a  State 
or  Territory  where,  by  law,  it  is  prohibited,  than  it  carries  any 
other  local  law;  no  more  than  it  carries  the  law  of  interest  upon 
money,  the  statute  of  limitations,  the  laws  of  distribution,  or 


SLAVERY  IN  THE  TERRITORIES      411 

the  penal  laws  of  a  State.  And,  sir,  if  this  compromise  bill  had 
passed,  how  could  the  master  have  been  protected  against  the 
theft  or  purloining  of  his  slave?  By  what  law  would  he  have 
sued  to  recover  him?  By  what  law  would  the  sale  and  evidences 
of  title  in  slaves  have  been  determined?  Each  of  the  slave 
States  has  its  own  laws  upon  this  subject.  And  if  the  Constitu- 
tion carries  the  laws  of  the  States  into  these  Territories,  does  it 
carry  the  laws  of  all  or  any  particular  one?  And  if  any  one, 
which  is  it?  .  .  . 

My  position,  Mr.  Speaker,  is  this:  That  slavery  is  an  institu- 
tion which  depends  solely  upon  the  municipal  law  of  the  place 
where  it  exists;  and  if  it  was  prohibited  by  law  in  these  Terri- 
tories at  the  time  of  the  conquest,  it  cannot  exist  there  until  the 
laws  of  the  place  be  altered  by  the  competent  law-making 
power  for  the  Territory.  .  .  . 

130.   "  Squatter  Sovereignty.''  ^ 

The  theory  of  our  Government  presupposes  that  its  various 
members  have  reserved  to  themselves  the  regulation  of  all 
subjects  relating  to  what  may  be  termed  their  internal  police. 
They  are  sovereign  within  their  boundaries,  except  in  those 
cases  where  they  have  surrendered  to  the  General  Government 
a  portion  of  their  rights,  in  order  to  give  effect  to  the  objects  of 
the  Union,  whether  these  concern  foreign  nations  or  the  several 
States  themselves.  Local  institutions,  if  I  may  so  speak, 
whether  they  have  reference  to  slavery  or  to  any  other  rela- 
tions, domestic  or  public,  are  left  to  local  authority,  either 
original  or  derivative.  Congress  has  no  right  to  say  there  shall 
be  slavery  in  New  York,  or  that  there  shall  be  no  slavery  in 
Georgia;  nor  is  there  any  other  human  power,  but  the  people  of 
those  States,  respectively,  which  can  change  the  relation  exist- 
ing therein;  and  they  can  say,  if  they  will,  "  We  will  have  slav- 
ery in  the  former,  and  we  will  aboHsh  it  in  the  latter." 

In  various  respects,  the  Territories  differ  from  the  States. 
Some  of  their  rights  are  inchoate,  and  they  do  not  possess  the 

*  Lewis  Cass  to  Governor  Nicholson,  December  24,  1847.  Niles's 
Register,  Lxxin,  293-94. 


412    SLAVERY  AND  THE  CONSTITUTION 

peculiar  attributes  of  sovereignty.  Their  relation  to  the  Gen- 
eral Government  is  very  imperfectly  defined  by  the  Constitu- 
tion; and  it  will  be  found,  upon  examination,  that  in  that 
instrument  the  only  grant  of  power  concerning  them  is  con- 
veyed in  the  phrase,  "  Congress  shall  have  the  power  to  dispose 
of  and  make  all  needful  rules  and  regulations  respecting  the 
territory  and  other  property  belonging  to  the  United  States." 
Certainly  this  phraseology  is  very  loose,  if  it  designed  to  include 
in  the  grant  the  whole  power  of  legislation  over  persons,  as  well 
as  things.  The  expression,  the  "territory  and  other  property," 
fairly  construed,  related  to  the  public  lands,  as  such ;  to  arsen- 
als, dockyards,  forts,  ships,  and  all  the  various  kinds  of  prop- 
erty which  the  United  States  may  and  must  possess. 

But  surely  the  simple  authority  to  dispose  of  and  regulate 
these  does  not  extend  to  the  unlimited  power  of  legislation;  to 
the  passage  of  all  laws,  in  the  most  general  acceptation  of  the 
word,  which,  by  the  by,  is  carefully  excluded  from  the  sentence. 
And,  indeed,  if  this  were  so,  it  would  render  unnecessary  an- 
other provision  of  the  Constitution,  which  grants  to  Congress 
the  power  to  legislate,  with  the  consent  of  the  States,  respect- 
ively, over  all  places  purchased  for  the  "erection  of  forts, 
magazines,  arsenals,  dockyards,"  etc.  These  being  the  ^''prop- 
erty" of  the  United  States,  if  the  power  to  make  "needful  rules 
and  regulations  concerning"  them  includes  the  general  power 
of  legislation,  then  the  grant  of  authority  to  regulate  "the 
territory  and  other  property  of  the  United  States  "  is  unlimited, 
wherever  subjects  are  found  for  its  operation,  and  its  exercise 
needed  no  auxiliary  provision.  If,  on  the  other  hand,  it  does 
not  include  such  power  of  legislation  over  the  "other  property" 
of  the  United  States,  then  it  does  not  include  it  over  their 
^'territory;"  for  the  same  terms  which  grant  the  one  grant  the 
other.  ''Territory''  is  here  classed  with  property,  and  treated 
as  such;  and  the  object  was  evidently  to  enable  the  General 
Government,  as  a  property-holder  —  which,  from  necessity, 
it  must  be  —  to  manage,  preserve  and  "dispose  of"  such  prop- 
erty as  it  might  possess,  and  which  authority  is  essential  almost 
to  its  being.  But  the  lives  and  persons  of  our  citizens,  with  the 


SLAVERY  IN. THE  TERRITORIES      413 

vast  variety  of  objects  connected  with  them,  cannot  be  con- 
trolled by  an  authority  which  is  merely  called  into  existence  for 
the  purpose  of  making  rules  and  regulations  for  the  disposition 
and  7nanagement  of  property. 

Such,  it  appears  to  me,  would  be  the  construction  put  upon 
this  provision  of  the  Constitution,  were  this  question  now  first 
presented  for  consideration,  and  not  controlled  by  imperious 
circumstances.  The  original  ordinance  of  the  Congress  of  the 
Confederation,  passed  in  1787,  and  which  was  the  only  act 
upon  this  subject  in  force  at  the  adoption  of  the  Constitution, 
provided  a  complete  frame  of  government  for  the  country 
north  of  the  Ohio,  while  in  a  territorial  condition,  and  for  its 
eventual  admission  in  separate  States  into  the  Union.  And 
the  persuasion  that  this  ordinance  contained  within  itself  all 
the  necessary  means  of  execution,  probably  prevented  any 
direct  reference  to  the  subject  in  the  Constitution,  further  than 
vesting  in  Congress  the  right  to  admit  the  States  formed  under 
it  into  the  Union.  However,  circumstances  arose,  which  re- 
quired legislation,  as  well  over  the  territory  north  of  the  Ohio, 
as  over  other  territory,  both  within  and  without  the  original 
Union,  ceded  to  the  General  Government,  and,  at  various 
times,  a  more  enlarged  power  has  been  exercised  over  the 
Territories  —  meaning  thereby  the  different  Territorial  Gov- 
ernments —  than  is  conveyed  by  the  limited  grant  referred  to. 
How  far  an  existing  necessity  may  have  operated  in  producing 
this  legislation,  and  thus  extending,  by  rather  a  violent  impli- 
cation powers  not  directly  given,  I  know  not.  But  certain  it  is 
that  the  principle  of  interference  should  not  be  carried  beyond 
the  necessary  implication,  which  produces  it.  It  should  be 
limited  to  the  creation  of  proper  governments  for  new  coun- 
tries, acquired  or  settled,  and  to  the  necessary  provisions  for 
their  eventual  admission  into  the  Union;  leaving,  in  the  mean- 
time, to  the  people  inhabiting  them,  to  regulate  their  internal 
concerns  in  their  own  way.  They  are  just  as  capable  of  doing 
so  as  the  people  of  the  States;  and  they  can  do  so,  at  any  rate 
as  soon  as  their  political  independence  is  recognized  by  admis- 
sion into  the  Union.    During  this  temporary  condition,  it  is 


414    SLAVERY  AND  THE  CONSTITUTION 

hardly  expedient  to  call  into  exercise  a  doubtful  and  invidious 
authority  which  questions  the  intelligence  of  a  respectable 
portion  of  our  citizens,  and  whose  limitation,  whatever  it  may 
be,  will  be  rapidly  approaching  its  termination  —  an  authorit}' 
which  would  give  to  Congress  despotic  power,  uncontrolled  by 
the  Constitution,  over  most  important  sections  of  our  common 
country.  .  .  . 

131.   The  Territorial  Acts  of  1850  for  Utah  and  New  Mexico } 

.  .  .  Those  enactments  embrace,  among  other  things,  less 
material  to  the  matters  under  consideration,  the  following 
provisions : 

"When  admitted  as  a  State,  the  said  Territory  or  any  portion 
of  the  same,  shall  be  received  into  the  Union,  with  or  without 
slavery,  as  their  constitution  may  prescribe  at  the  time  of  their 
admission." 

"That  the  legislative  power  and  authority  of  said  Territory 
shall  be  vested  in  the  governor  and  a  legislative  assembly." 

"That  the  legislative  power  of  said  Territor}^  shall  extend  to 
all  rightful  subjects  of  legislation,  consistent  with  the  Constitu- 
tion of  the  United  States  and  the  provisions  of  this  act;  but  no 
law  shall  be  passed  interfering  with  the  primary  disposal  of  the 
soil ;  no  tax  shall  be  im^posed  upon  the  property  of  the  United 
States ;  nor  shall  the  lands  or  other  property  of  non-residents  be 
taxed  higher  than  the  lands  or  other  property  of  residents." 

"Writs  of  error  and  appeals  from  the  final  decisions  of  said 
supreme  court  shall  be  allowed,  and  may  be  taken  to  the  Su- 
preme Court  of  the  United  States  in  the  same  manner  and  un- 
der the  same  regulations  as  from  the  circuit  courts  of  the 
United  States,  where  the  value  of  the  property  or  the  amount  in 
controversy,  to  be  ascertained  by  the  oath  or  affirmation  of 
either  party,  or  other  competent  witness,  shall  exceed  one  thou- 
sand dollars,  except  only  that,  in  all  cases  involving  title  to 
slaves,  the  said  writs  of  error  or  appeals  shall  be  allowed  and 
decided  by  the  said  supreme  court,  without  regard  to  the  value 

*  Report  of  the  Senate  Committee  on  Territories,  January  4, 1854.  Senate 
Reports,  No.  15,  33  Cong.,  i  Sess. 


SLAVERY  IN  THE  TERRITORIES      415 

of  the  matter,  property,  or  title  in  controversy;  and  except, 
also,  that  a  writ  of  error  or  appeal  shall  also  be  allowed  to  the 
Supreme  Court  of  the  United  States,  from  the  decisions  of  the 
said  supreme  court  created  by  this  act,  or  of  any  judge  thereof, 
or  of  the  district  courts  created  by  this  act,  or  of  any  judge 
thereof,  upon  any  writ  of  habeas  corpus  involving  the  question 
of  personal  freedom ;  and  each  of  the  said  district  courts  shall 
have  and  exercise  the  same  jurisdiction  in  all  cases  arising  un- 
der the  Constitution  and  laws  of  the  United  States  as  is  vested 
in  the  circuit  and  district  courts  of  the  United  States;  and  the 
said  supreme  and  district  courts  of  the  said  Territory,  and  the 
respective  judges  thereof,  shall  and  may  grant  writs  of  habeas 
corpus  in  all  cases  in  which  the  same  are  granted  by  the  judges 
of  the  United  States  in  the  District  of  Columbia." 


CHAPTER  XLV 

THE    RENDITION    OF    FUGITIVE    SLAVES 

The  facts  in  the  case  of  Prigg  i-.  Pennsylvania  may  be  briefly  stated. 
Prigg  was  the  agent  of  Margaret  Ashmore,  a  citizen  of  Maryland  and 
owner  of  a  negro  woman  who  had  escaped  into  Pennsylvania.  Under 
warrant  from  a  magistrate  of  Pennsylvania,  Prigg  had  caused  the  woman 
to  be  apprehended;  but  he  was  unable  to  persuade  the  local  authority, 
before  whom  she  was  brought,  to  take  further  cognizance  of  the  case. 
Thereupon  Prigg  carried  the  woman  and  her  children  vi  et  armis  out  of 
the  State  and  delivered  them  into  the  custody  of  their  owner.  For  this 
forcible  seizure  and  abduction,  Prigg  was  subsequently  indicted  for 
felony  under  a  Pennsylvania  statute  of  1826.  Judgment  in  the  lower 
courts  against  him  was  reafhrmed  in  the  supreme  court  of  Pennsylvania. 
The  case  was  then  taken  to  the  Supreme  Court  of  the  United  States  on 
writ  of  error. 

Under  cover  of  the  decision  of  the  Court  in  this  case  of  Prigg  v. 
Pennsylvania,  many  Northern  States  passed  personal  liberty  laws  similar 
to  that  of  Vermont  which  follows.  These  acts  in  turn  led  the  South  to 
demand  a  more  stringent  fugitive  slave  law.  The  Act  of  1850  was  framed 
to  meet  these  demands.  On  the  much-mooted  question  whether  this  stat- 
ute of  1850  denied  the  privilege  of  the  writ  of  habeas  corpus,  the  opinion 
of  the  Attorney-General,  John  J.  Crittenden,  is  of  importance. 

132.   Prigg  V.  Pennsylvania.^ 

Mr.  Justice  Story  delivered  the  opinion  of  the  Court: 
There  are  two  clauses  in  the  constitution  upon  the  subject 
of  fugitives  which  stand  in  juxtaposition  with  each  other,  and 
have  been  thought  mutually  to  illustrate  each  other.  They  are 
both  contained  in  the  second  section  of  the  fourth  article.  .  .  . 

The  last  clause  is  that,  the  true  interpretation  whereof  is  di- 
rectly in  judgment  before  us.  Historically,  it  is  well  known  that 
the  object  of  this  clause  was  to  secure  to  the  citizens  of  the 
slaveholding  States  the  complete  right  and  title  of  ownership 
in  their  slaves,  as  property,  in  every  State  in  the  Union  into 
which  they  might  escape  from  the  State  where  they  were  held 
in  servitude.  .  .  , 

^  Supreme  Court  of  the  United  States,  1842.    16  Peters,  539. 


RENDITION  OF  FUGITIVE  SLAVES     417 

The  clause  manifestly  contemplates  the  existence  of  a  posi- 
tive, unqualified  right  on  the  part  of  the  owner  of  the  slave, 
which  no  State  law  or  regulation  can  in  any  way  qualify,  regu- 
late, control,  or  restrain.  The  slave  is  not  to  be  discharged 
from  service  or  labor,  in  consequence  of  any  State  law  or  regu- 
lation. .  .  . 

The  owner  must,  therefore,  have  the  right  to  seize  and  repos- 
sess the  slave,  which  the  local  laws  of  his  own  State  confer  upon 
him  as  property;  and  we  all  know  that  this  right  of  seizure  and 
recaption  is  universally  acknowledged  in  all  the  slaveholding 
States.  Indeed,  this  is  no  more  than  a  mere  affirmance  of  the 
principles  of  the  common  law  applicable  to  this  very  sub- 
ject. .  .  . 

Upon  this  ground  we  have  not  the  slightest  hesitation  in 
holding  that,  under  and  in  virtue  of  the  constitution,  the  owner 
of  a  slave  is  clothed  with  entire  authority,  in  every  State  in  the 
Union,  to  seize  and  recapture  his  slave,  whenever  he  can  do  it 
without  any  breach  of  the  peace  or  any  illegal  violence.  In  this 
sense  and  to  this  extent  this  clause  of  the  constitution  may 
properly  be  said  to  execute  itself,  and  to  require  no  aid  from 
legislation.  State  or  national. 

But  the  clause  of  the  constitution  does  not  stop  here;  nor, 
indeed,  consistently  with  its  professed  objects,  could  it  do  so. 
Many  cases  must  arise  in  which,  if  the  remedy  of  the  owner 
were  confined  to  the  mere  right  of  seizure  and  recaption,  he 
would  be  utterly  without  any  adequate  redress.  .  .  . 

And  this  leads  us  to  the  consideration  of  the  other  part  of  the 
clause  which  implies  at  once  a  guaranty  and  duty.  It  says: 
"But  he  (the  slave)  shall  be  delivered  up  on  claim  of  the  party 
to  whom  such  service  or  labor  may  be  due."  Now,  we  think  it 
exceedingly  difficult,  if  not  impracticable,  to  read  this  language 
and  not  to  feel  that  it  contemplated  some  farther  remedial 
redress  than  that  which  might  be  administered  at  the  hands  of 
the  owner  himself.  A  claim  is  to  be  made.  What  is  a  claim?  It 
is,  in  a  just  juridical  sense,  a  demand  of  some  matter  as  of  right 
made  by  one  person  upon  another,  to  do  or  to  forbear  to  do 
some  act  or  thing  as  a  matter  of  duty.  .  .  .  The  slave  is  to  be 


4i8    SLAVERY  AND  THE  CONSTITUTION 

delivered  up  on  the  claim.  By  whom  to  be  delivered  up?  In 
what  m-ode  to  be  delivered  up?  How,  if  a  refusal  takes  place,  is 
the  right  of  delivery  to  be  enforced?  Upon  what  proofs?  What 
shall  be  the  evidence  of  a  rightful  recaption  or  delivery?  When 
and  under  what  circumstances  shall  the  possession  of  the  owner, 
after  it  is  obtained,  be  conclusive  of  his  right,  so  as  to  preclude 
any  further  inquiry  or  examination  into  it  by  local  tribunals  or 
otherwise,  while  the  slave,  in  possession  of  the  owner,  is  in 
transitu  to  the  State  from  which  he  fled? 

These,  and  many  other  questions,  will  readily  occur  upon  the 
slightest  attention  to  the  clause;  and  it  is  obvious  that  they 
can  receive  but  one  satisfactory  answer.  They  require  the  aid 
of  legislation  to  protect  the  right,  to  enforce  the  delivery,  and 
to  secure  the  subsequent  possession  of  the  slave.  .  .  . 

Congress  has  taken  this  very  view  of  the  power  and  duty  of 
the  national  government.  .  .  .  The  result  of  their  delibera- 
tions, was  the  passage  of  the  Act  of  the  12  th  of  February,  1793 
(ch.  51,7),  which,  after  having,  in  the  first  and  second  sections, 
provided  for  the  case  of  fugitives  from  justice  by  a  dem.and 
to  be  made  of  the  delivery  through  the  executive  authority 
of  the  State  where  they  are  found,  proceeds,  in  the  third  sec- 
tion, to  provide,  that  when  a  person  held  to  labor  or  service 
in  any  of  the  United  States  shall  escape  into  any  other  of  the 
States  or  territories,  the  person  to  whom  such  labor  or  servace 
may  be  due,  his  agent  or  attorney,  is  hereby  empowered  tc 
seize  or  arrest  such  fugitive  from  labor,  and  take  him  or  hei 
before  any  judge  of  the  circuit  or  district  courts  of  the  United 
States,  residing  or  being  within  the  State,  or  before  any  magis- 
trate of  a  county,  city,  or  town  corporate,  wherein  such  seizure 
or  arrest  shall  be  made;  and  upon  proof  to  the  satisfaction  of 
such  judge  or  magistrate,  either  by  oral  evidence  or  afl&davit, 
&c.,  that  the  person  so  seized  or  arrested,  doth,  under  the  laws 
of  the  State  or  territory  from  which  he  or  she  fled,  owe  service 
or  labor  to  the  person  claiming  him  or  her,  it  shall  be  the  duty 
of  such  judge  or  magistrate  to  give  a  certificate  thereof  to 
such  claimant,  his  agent  or  attorney,  which  shall  be  sufiicient 
warrant  for  removmg  the  said  fugitive  from  labor  to  the  State 


RENDITION  OF  FUGITIVE  SLAVES    419 

or  territory  from  which  he  or  she  fled.  The  fourth  section  pro- 
vides a  penalty  against  any  person  who  shall  knowingly  and 
willingly  obstruct  or  hinder  such  claimant,  his  agent,  or  attor- 
ney, in  so  seizing  or  arresting  such  fugitive  from  labor,  or  rescue 
such  fugitive  from  the  claimant,  or  his  agent,  or  attorney,  when 
so  arrested,  or  who  shall  harbor  or  conceal  such  fugitive  after 
notice  that  he  is  such ;  and  it  also  saves  to  the  person  claiming 
such  labor  or  service  his  right  of  action  for  or  on  account  of 
such  injuries. 

In  a  general  sense,  this  act  may  be  truly  said  to  cover  the 
whole  ground  of  the  constitution,  both  as  to  fugitives  from 
justice,  and  fugitive  slaves;  that  is,  it  covers  both  the  subjects 
in  its  enactments;  not  because  it  exhausts  the  remedies  which 
may  be  appHed  by  Congress  to  enforce  the  rights,  if  the  pro- 
visions of  the  act  shall  in  practice  be  found  not  to  attain  the 
object  of  the  constitution;  but  because  it  points  out  fully  all 
the  modes  of  attaining  those  objects,  which  Congress,  in  their 
discretion,  have  as  yet  deemed  expedient  or  proper  to  meet  the 
exigencies  of  the  constitution.  .  .  . 

We  hold  the  act  to  be  clearly  constitutional  in  all  its  leading 
provisions,  and,  indeed,  with  the  exception  of  that  part  which 
confers  authority  upon  State  magistrates,  to  be  free  from 
reasonable  doubt  and  difficulty  upon  the  grounds  already 
stated.  As  to  the  authority  so  conferred  upon  State  magis- 
trates, while  a  difference  of  opinion  has  existed,  and  may  exist 
still  on  the  point,  in  different  States,  whether  State  magis- 
trates are  bound  to  act  under  it,  none  is  entertained  by  this 
court,  that  State  magistrates  may,  if  they  choose,  exercise  that 
authority,  unless  prohibited  by  State  legislation. 

The  remaining  question  is,  whether  the  power  of  legislation 
upon  this  subject  is  exclusive  in  the  national  government,  or 
concurrent  in  the  States,  until  it  is  exercised  by  Congress.  In 
our  opinion  it  is  exclusive;  and  we  shall  now  proceed  briefly 
to  state  our  reasons  for  that  opinion.  The  doctrine  stated  by 
this  court  in  Sturgis  v.  Crowninshield  (4  Wheat.  Rep.  122,  193) 
contains  the  true,  although  not  the  sole  rule  or  consideration, 
which  is  applicable  to  this  particular  subject.    "Wherever," 


420    SLAVERY  AND  THE  CONSTITUTION 

said  Mr.  Chief  Justice  Marshall,  in  delivering  the  opinion  of 
the  court,  "the  terms  in  which  a  power  is  granted  to  Congress, 
or  the  nature  of  the  power  require,  that  it  should  be  exercised 
exclusively  by  Congress,  the  subject  is  as  completely  taken 
from  the  State  Legislatures  as  if  they  had  been  forbidden  to 
act."  The  nature  of  the  power  and  the  true  objects  to  be 
attained  by  it,  are  then  as  important  to  be  weighed,  in  consid- 
ering the  question  of  its  exclusiveness,  as  the  words  in  which  it 
is  granted. 

In  the  first  place,  it  is  material  to  state  (what  has  been 
already  incidentally  hinted  at)  that  the  right  to  seize  and  retake 
fugitive  slaves,  and  the  duty  to  deliver  them  up,  in  whatever 
State  of  the  Union  they  may  be  found,  and  of  course  the  cor- 
responding power  of  Congress  to  use  the  appropriate  means  to 
enforce  the  right  and  duty,  derive  their  whole  validity  and 
obligation  exclusively  from   the  constitution  of  the  United 
States,  and  are  there,  for  the  first  time,  recognized  and  estab- 
lished in  that  peculiar  character.  .  .  .  The  natural  inference 
deducible  from  this  consideration  certainly  is,  in  the  absence 
of  any  positive  delegation  of  power  to  the  State  Legislatures, 
that  it  belongs  to  the  legislative  department  of  the  national 
government,  to  which  it  owes  its  origin  and  establishment.  .  .  . 
In  the  next  place,  the  nature  of  the  provision  and  the  objects 
to  be  attained  by  it  require  that  it  should  be  controlled  by  one 
and  the  same  will,  and  act  uniformly  by  the  same  system  of 
regulations  throughout  the  Union.   If,  then,  the  States  have  a 
right,  in  the  absence  of  legislation  by  Congress,  to  act  upon 
the  subject,  each  State  is  at  liberty  to  prescribe  just  such 
regulations  as  suit  its  own  policy,  local  convenience,  and  local 
feelings.  .  .  . 

It  is  scarcely  conceivable  that  the  slaveholding  States  would 
have  been  satisfied  with  leaving  to  the  legislation  of  the  non- 
slaveholding  States  a  power  of  regulation,  in  the  absence  of 
that  of  Congress,  which  would  or  might  practically  amount  to 
a  power  to  destroy  the  rights  of  the  owner.  If  the  argument, 
therefore,  of  a  concurrent  power  in  the  States  to  act  upon  the 
subject  matter  in  the  absence  of  legislation  by  Congress  be  well 


RENDITION  OF  FUGITIVE  SLAVES     421 

founded;  then,  if  Congress  had  never  acted  at  all,  or  if  the  act 
of  Congress  should  be  repealed  without  providing  a  substitute, 
there  would  be  a  resulting  authority  in  each  of  the  States  to 
regulate  the  whole  subject  at  its  pleasure,  and  to  dole  out  its 
own  remedial  justice,  or  withhold  it  at  its  pleasure  and  accord- 
ing to  its  own  views  of  pohcy  and  expediency.  Surely  such  a 
state  of  things  never  could  have  been  intended,  under  such  a 
solemn  guaranty  of  right  and  duty.  .  .  . 

We  entertain  no  doubt  whatsoever  that  the  States,  in  virtue 
of  their  general  pohce  power,  possess  full  jurisdiction  to  arrest 
and  restrain  runaway  slaves,  and  remove  them  from  their 
borders,  and  otherwise  to  secure  themselves  against  their 
depredations  and  evil  example,  as  they  certainly  may  do  in 
cases  of  idlers,  vagabonds,  and  paupers.  .  .  .  But  such  regu- 
lations can  never  be  permitted  to  interfere  with  or  to  obstruct 
the  just  rights  of  the  owner  to  reclaim  his  slave,  derived  from 
the  constitution  of  the  United  States,  or  with  the  remedies 
prescribed  by  Congress  to  aid  and  enforce  the  same. 

Upon  these  grounds,  we  are  of  opinion  that  the  act  of  Penn- 
sylvania upon  which  this  indictment  is  founded,  is  unconstitu- 
tional and  void.  .  .  . 

133.  Report  of  the  Legislature  of  Virginia,  1849.^ 

.  .  .  The  South  is  wholly  without  the  benefit  of  that  solemn 
constitutional  guaranty  which  was  so  sacredly  pledged  to  it 
at  the  formation  of  this  Union.  Our  condition  is  precisely  in 
efifect,  that  which  it  was  under  the  articles  of  the  old  confedera- 
tion. No  citizen  of  the  South  can  pass  the  frontier  of  a  non- 
slaveholding  state  and  there  exercise  his  undoubted  constitu- 
tional right  of  seizing  his  fugitive  slave,  with  a  view  to  take  him 
before  a  judicial  officer  and  there  prove  his  right  of  ownership, 
without  imminent  danger  of  being  prosecuted  criminally  as  a 
kidnapper,  or  being  sued  in  a  civil  action  for  false  imprison- 
ment —  imprisoned  himself  for  want  of  bail,  and  subjected 
in  his  defence  to  an  expense  exceeding  the  whole  \'alue  of 
the  property  claimed,  or  finally  of  being  mobbed  or  being 
^  Ads  of  Virginia,  1S49-50,  240-54  passim. 


422    SLAVERY  AND  THE  CONSTITUTION 

put  to  death  in  a  street  fight  by  insane  fanatics  or  brutal  ruf- 
fians. ... 

.  .  .  The  legislation  to  be  found  upon  this  subject,  on  the 
statute  books  of  the  non-slaveholding  states,  may  be  divided 
into  two  classes.  The  first  of  which  would  embrace  the  legis- 
lation of  those  states,  which,  professing  a  seeming  respect  for 
the  obligations  of  the  constitution,  do,  under  the  pretext  of 
conforming  to  its  requisitions,  subject  the  slave  owner  to  con- 
ditions utterly  incompatible  with  the  recovery  of  his  slaves.  . .  . 

Second,  The  laws  of  those  states  which  affect  no  conceal- 
ment of  their  hatred  to  Southern  institutions,  nor  of  their 
utter  and  open  contempt  and  defiance  of  the  obligations  of  the 
federal  compact. 

Of  this  class,  which  is  now  indeed  the  prevailing  legislation 
of  almost  the  whole  non-slaveholding  states,  an  act  passed  by 
the  general  assembly  of  the  state  of  Vermont,  on  the  ist  day 
of  November  1843,  ^^Y  be  cited  as  a  fair  illustration.  It  is  in 
these  words : 

"An  Act  for  the  protection  of  Personal  Liberty. 

"  It  is  hereby  enacted  by  the  general  assembly  of  the  state  of 
Vermont,  as  follows: 

"Sec.  I.  No  court  of  record  in  this  state,  nor  any  judge 
thereof,  no  justice  of  the  peace  nor  other  magistrate,  acting 
under  the  authority  of  this  state,  shall  hereafter  take  cog- 
nizance of,  or  grant  any  certificate,  w^arrant  or  other  process, 
in  any  case  arising  under  section  three  of  an  act  of  congress, 
passed  February  twelfth,  seventeen  hundred  and  ninety-three, 
entitled  '  An  act  respecting  fugitives  from  justice,  and  persons 
escaping  from  the  service  of  their  masters,'  to  any  person  claim- 
ing any  other  person  as  a  fugitive  slave  in  this  state. 

"Sec.  2.  No  sheriff,  deputy  sheriff,  high  baihff,  constable, 
jailor,  or  other  officer  or  citizen  of  this  state,  shall  hereafter 
seize,  arrest  or  detain,  or  aid  in  the  seizure,  arrest  or  detention, 
or  im.prisonment  in  any  jail  or  other  building  belonging  to  this 
state,  or  to  any  county,  town,  city  or  person  therein,  of  any 
person  for  the  reason  that  he  is  or  may  be  claimed  as  a  fugitive 
slave. 


RENDITION  OF  FUGITIVE  SLAVES    423 

"Sec.  3.  No  sheriff,  deputy  sheriff,  high  bailiff,  constable, 
or  other  officer  or  citizen  of  this  state,  shall  transport,  or 
remove,  or  aid  or  assist  in  the  transportation  or  removal  of 
any  fugitive  slave,  or  any  person  claimed  as  such,  from  any 
place  in  this  state  to  any  other  place  within  or  without  the 
same. 

"Sec.  4.  If  any  such  judge,  justice  of  the  peace,  magistrate, 
officer  or  citizen,  shall  offend  against  the  two  preceding  sec- 
tions, such  judge,  justice  of  peace,  magistrate,  officer  or  citizen, 
shall  be  subject  to  the  penalties  provided  in  section  five  of  this 
act. 

"Sec.  5.  Any  judge  of  any  court  of  record  in  this  state,  any 
justice  of  the  peace  or  other  magistrate,  any  sheriff,  deputy 
sheriff,  high  bailiff,  constable,  or  jailor,  or  any  citizen  of  this 
state,  who  shall  offend  against  the  provisions  of  this  act,  by 
acting  directly  or  indirectly  under  the  provisions  of  section 
three  of  the  act  of  congress  aforesaid,  shall  forfeit  a  sum  not 
exceeding  one  thousand  dollars,  to  the  use  of  the  state,  to  be 
recovered  upon  information  or  indictment,  or  be  imprisoned 
in  the  state  prison  not  exceeding  five  years."  .  .  . 

134.  Opinion  of  the  Attorney-General  on  the  Fugitive  Slave  Law 

of  1850} 

.  .  .  The  Supreme  Court  of  the  United  States  has  decided 
that  the  owner  independent  of  any  aid  from  State  or  national 
legislation,  may,  in  virtue  of  the  constitution,  and  his  own 
right  of  property,  seize,  and  recapture  his  fugitive  slave  in  what- 
soever State  he  may  find  him,  and  carry  him  back  to  the  State 
or  Territory  from  which  he  escaped.  (Prigg  vs.  Commonwealth 
of  Pennsylvania,  18  Peters,  359.)  This  bill,  therefore,  confers 
no  right  on  the  owner  of  the  fugitive  slave.  It  only  gives  him 
an  appointed  and  peaceable  remedy  in  place  of  the  more 
exposed  and  insecure,  but  not  less  lawful  mode  of  self  redress; 
and  as  to  the  fugitive  slave,  he  has  no  cause  to  complain  of  this 
bill  —  it  adds  no  coercion  to  that  which  the  owner  himself 

^  September  i8,  1S50.  Executive  Documents,  31  Cong.,  2  Sess.,  2099- 
2102  passim. 


424    SLAVERY  AND  THE  CONSTITUTION 

might,  at  his  own  will,  rightfully  exercise;  and  all  the  proceed- 
ings which  it  institutes  are  but  so  much  of  orderly  judicial 
authority  interposed  between  him  and  his  owner  and  conse- 
quently a  protection  to  him,  and  mitigation  of  the  exercise 
directly  by  the  owner  himself  of  his  personal  authority.  .  .  . 

My  opinion,  as  before  expressed,  is,  that  there  is  nothing  in 
that  clause  or  section  [6  th]  which  conflicts  with  or  suspends 
or  was  intended  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus.  I  think  so  because  the  bill  says  not  one  word  about  that 
writ  —  because,  by  the  constitution.  Congress  is  expressly  for- 
bidden to  suspend  the  privilege  of  this  writ  "Unless  when  in 
cases  of  rebellion  or  invasion  the  public  safety  may  require 
it;"  and,  therefore,  such  suspension  by  this  act  (there  being 
neither  rebellion  or  invasion)  would  be  a  plain  and  palpable 
violation  of  the  constitution,  and  no  intention  to  commit  such 
a  violation  of  the  constitution,  of  their  duty  and  their  oaths, 
ought  to  be  imputed  to  them  upon  mere  constructions  and  im- 
plications —  and,  thirdly,  because  there  is  no  incompatibility 
between  these  provisions  of  the  bill  and  the  privilege  of  the  writ 
of  habeas  corpus  in  its  utmost  constitutional  latitude.  .  .  . 

It  is  not  within  the  province  or  privilege  of  this  great  writ 
to  loose  those  whom  the  law  has  bound.  That  would  be  to  put 
a  writ  granted  by  the  law  in  opposition  to  the  law,  to  make 
one  part  of  the  law  destructive  of  another.  This  writ  follows 
the  law  and  obeys  the  law.  It  is  issued,  upon  proper  com- 
plaint, to  make  inquiry  into  the  causes  of  commitment  or 
imprisonment  and  its  sole  remedial  power  and  purpose  is  to 
deliver  the  party  from  "all  manner  of  illegal  confinement." 
(3  Black.  Com.  131.)  .  .  . 

The  condition  of  one  in  custody  as  a  fugitive  slave  is,  under 
this  law,  so  far  as  respects  the  writ  of  habeas  corpus,  precisely 
the  same  as  that  of  all  other  prisoners  under  the  laws  of  the 
United  States.  The  "privilege"  of  that  writ  remains  alike  to 
all  of  them,  but  to  be  judged  of  —  granted,  or  refused  —  dis- 
charged or  enforced  —  by  the  proper  tribunal,  according  to  the 
circumstances  of  each  case,  and  as  the  commitment  and 
detention  may  appear  to  be  legal  or  illegal. 


RENDITION  OF  FUGITIVE  SLAVES     425 

The  whole  effect  of  the  law  may  be  thus  briefly  stated ;  Con- 
gress has  constituted  a  tribunal  with  exclusive  jurisdiction  to 
determine  summarily,  and  without  appeal,  who  are  fugitives 
from  service  or  labor  under  the  2d  section  of  the  4th  article 
of  the  constitution,  and  to  whom  such  service  or  labor  is  due. 
The  judgment  of  every  tribunal  of  exclusive  jurisdiction  where 
no  appeal  lies,  is  of  necessity,  conclusive  upon  every  other 
tribunal.  And,  therefore,  the  judgment  of  the  tribunal  created 
by  this  act  is  conclusive  upon  all  tribunals[;]  wherever  this 
judgment  is  made  to  appear  it  is  conclusive  of  the  right  of  the 
owner  to  retain  in  his  custody  the  fugitive  from  his  service,  and 
to  remove  him  back  to  the  place  or  state  from  which  he 
escaped.  If  it  is  shown  upon  the  application  of  the  fugitive 
for  a  writ  of  habeas  corpus,  it  prevents  the  issuing  of  the  writ 
—  if,  upon  the  return,  it  discharges  the  writ  and  restores  or 
maintains  the  custody. 

The  expressions  used  in  the  last  clause  of  the  6th  section, 
that  the  certificate  therein  alluded  to  "shall  prevent  all 
molestation"  of  the  persons  to  whom  granted  "by  any  process 
issued,"  &c.,  probably  mean  only  what  the  act  of  1795  meant 
by  declaring  a  certificate  under  that  act  a  sufficient  warrant 
for  the  removal  of  the  fugitive,  and  certainly  do  not  mean  a 
suspension  of  the  habeas  corpus.  .  .  . 


CHAPTER  XLVI 

THE  DOCTRINE  OF  POPULAR  SOVEREIGNTY 

The  Kansas-Nebraska  Act  had  a  long  and  involved  history.    The 
Nebraska  Bill,  which  was  reported  by  the  Committee  on  Territories  of  the 
Senate  on  January  4,  1854,  conformed  in  general  to  the  provisions  of  the 
Utah  and  New  Mexico  Acts.  It  contained  no  reference  to  the  Missouri 
Compromise,  but  subsequently  it  was  amplified  by  a  section  (omitted 
by  a  clerical  error,  it  was  said)  which  incorporated  the  three  propositions 
contained  in  the  report.   All  questions  pertaining  to  slavery  were  to  be 
left  to  the  decision  of  the  people  through  their  appropriate  representa- 
tives.   Did  this  mean  that  the  people  were  not  to  be  restrained  by  the 
prohibition  of  the  Missouri  Act  of  1820?  All  doubts  on  this  point  were 
removed  by  sundry  amendments  which  were  reported  on  January  23, 
by  the  Committee  on  Territories.  Two  Territories,  Nebraska  and  Kansas, 
were  now  to  be  organized  with  the  same  provisions  as  in  the  case  of  Utah 
and  New  Mexico,  while  the  INIissouri  Compromise  was  declared  to  have 
been  "superseded  by  the  principles  of  the  legislation  of  1850,"  and  there- 
fore to  be  "inoperative."   On  February  6,  still  another  amendment  was 
offered,  —  a  compromise  agreed  upon  in  a  Democratic  caucus,  —  which 
was  finally  adopted  and  incorporated  in  sections  14  and  32.  The  restric- 
tive section  of  the  Missouri  Act  of  1820  was  now  declared  to  be  "incon- 
sistent with  the  principle  of  non-intervention  by  Congress  with  slavery 
in  the  States  and  Territories,  as  recognized  by  the  legislation  of  1850," 
and  therefore  "inoperative  and  void."    Subjoined  to  the  foregoing  was 
the  declaration:  "It  being  the  true  intent  and  meaning  of  this  act  not  to 
legislate  slavery  into  any  Territory  or  State,  nor  to  exclude  it  therefrom, 
but  to  leave  the  people  thereof  perfectly  free  to  form  and  regulate  their 
domestic  institutions  in  their  own  way,  subject  only  to  the  Constitution 
of  the  United  States."    It  should  be  noted  that  Douglas  employed  the 
phrases  "non-intervention"  and  "popular  sovereignty"  interchangeably, 
while  his  Southern  colleagues  repudiated  popular  sovereignty  and  ac- 
quiesced in  non-intervention  as  in  effect  conceding  all  the  rights  which 
they  claimed  in  the  Territories.  It  should  also  be  noted  that  the  Kansas- 
Nebraska  Act,  like  the  Utah  Act,  provided  for  an  ultimate  appeal  to  the 
Supreme  Court  on  all  matters  involving  title  to  slave  property  in  the 
Territories. 

135.  Report  of  the  Senate  Committee  on  Territories,  1854.^ 

The  principal  amendments  which  your  committee  deem  it 
their  duty  to  commend  to  the  favorable  action  of  the  Senate, 
^  Senate  Reports,  No.  15,  33  Cong.,  i  Sess.    January  4,  1854. 


POPULAR  SOVEREIGNTY  427 

in  a  special  report,  are  those  in  which  the  principles  established 
by  the  compromise  measures  of  1850,  so  far  as  they  are  applic- 
able to  territorial  organizations,  are  proposed  to  be  affirmed 
and  carried  into  practical  operation  within  the  limits  of  the 
new  Territory. 

The  wisdom  of  those  measures  is  attested,  not  less  by  their 
salutary  and  beneficial  effects,  in  allaying  sectional  agitation 
and  restoring  peace  and  harmony  to  an  irritated  and  distracted 
people,  than  by  the  cordial  and  almost  universal,  approbation 
with  which  they  have  been  received  and  sanctioned  by  the 
whole  country.  In  the  judgment  of  your  committee,  those 
measures  were  intended  to  have  a  far  more  comprehensive  and 
enduring  effect  than  the  mere  adjustment  of  the  difficulties 
arising  out  of  the  recent  acquisition  of  Mexican  territory.  They 
were  designed  to  establish  certain  great  principles,  which  would 
not  only  furnish  adequate  remedies  for  existing  evils,  but,  in  all 
time  to  come,  avoid  the  perils  of  a  similar  agitation,  by  with- 
drawing the  question  of  slavery  from  the  halls  of  Congress  and 
the  political  arena,  and  committing  it  to  the  arbitrament  of 
those  who  were  immediately  interested  in,  and  alone  respon- 
sible for  its  consequences.  With  the  view  of  conforming  their 
action  to  what  they  regard  the  settled  policy  of  the  govern- 
ment, sanctioned  by  the  approving  voice  of  the  American 
people,  your  committee  have  deemed  it  their  duty  to  incor- 
porate and  perpetuate,  in  their  territorial  bill,  the  principles 
and  spirit  of  those  measures.  If  any  other  considerations  were 
necessary,  to  render  the  propriety  of  this  course  imperative 
upon  the  committee,  they  may  be  found  in  the  fact,  that  the 
Nebraska  country  occupies  the  same  relative  position  to  the 
slavery  question,  as  did  New  Mexico  and  Utah,  when  those 
territories  were  organized. 

It  was  a  disputed  point,  whether  slavery  was  prohibited  by 
law  in  the  country  acquired  from  Mexico.  On  the  one  hand  it 
was  contended,  as  a  legal  proposition,  that  slavery  having  been 
prohibited  by  the  enactments  of  Mexico,  according  to  the  laws 
of  nations,  we  received  the  country  with  all  its  local  laws  and 
domestic  institutions  attached  to  the  soil,  so  far  as  they  did 


428    SLAVERY  AND  THE  CONSTITUTION 

not  conflict  with  the  Constitution  of  the  United  States;  and 
that  a  law,  either  protecting  or  prohibiting  slavery,  was  not 
repugnant  to  that  instrument,  as  was  evidenced  by  the  fact, 
that  one-half  of  the  States  of  the  Union  tolerated,  while  the 
other  half  prohibited,  the  institution  of  slavery.  On  the  other 
hand  it  was  insisted  that,  by  virtue  of  the  Constitution  of  the 
United  States,  every  citizen  had  a  right  to  remove  to  any 
Territory  of  the  Union,  and  carry  his  property  with  him  under 
the  protection  of  law,  whether  that  property  consisted  in 
persons  or  things.  .  .  . 

Such  being  the  character  of  the  controversy,  in  respect  to  the 
territory  acquired  from  Mexico,  a  similar  question  has  arisen  in 
regard  to  the  right  to  hold  slaves  in  the  proposed  territory  of 
Nebraska  when  the  Indian  laws  shall  be  withdrawn,  and  the 
country  thrown  open  to  emigration  and  settlement.  .  .  . 

.  .  .  The  decision  of  this  question  involves  the  constitu- 
tional power  of  Congress  to  pass  laws  prescribing  and  regulat- 
ing the  domestic  institutions  of  the  various  territories  of  the 
Union.  In  the  opinion  of  those  eminent  statesmen,  who  hold 
that  Congress  is  invested  with  no  rightful  authority  to  legislate 
upon  the  subject  of  slavery  in  the  territories,  the  8th  section 
of  the  act  preparatory  to  the  admission  of  Missouri  is  null 
and  void ;  while  the  prevailing  sentiment  in  large  portions  of 
the  Union  sustains  the  doctrine  that  the  Constitution  of  the 
United  States  secures  to  every  citizen  an  inalienable  right  to 
move  into  any  of  the  territories  with  his  property,  of  whatever 
kind  and  description,  and  to  hold  and  enjoy  the  same  under  the 
sanction  of  law.  Your  committee  do  not  feel  themselves  called 
upon  to  enter  into  the  discussion  of  these  controverted  ques- 
tions. They  involve  the  same  grave  issues  which  produced  the 
agitation,  the  sectional  strife,  and  the  fearful  struggle  of  1850. 
As  Congress  deemed  it  wise  and  prudent  to  refrain  from  decid- 
ing the  matters  in  controversy  then,  either  by  afhrming  or  re- 
pealing the  Mexican  laws,  or  by  an  act  declaratory  of  the  true 
intent  of  the  Constitution  and  the  extent  of  the  protection  af- 
forded by  it  to  slave  property  in  the  territories,  so  your  com- 
mittee are  not  prepared  now  to  recommend  a  departure  from 


POPULAR  SOVEREIGNTY  429 

the  course  pursued  on  that  memorable  occasion,  either  by 
affirming  or  repealing  the  8th  section  of  the  Missouri  act,  or  by 
any  act  declaratory  of  the  meaning  of  the  Constitution  in 
respect  to  the  legal  points  in  dispute. 

Your  committee  deem  it  fortunate  for  the  peace  of  the  coun- 
try, and  the  security  of  the  Union,  that  the  controversy  then 
resulted  in  the  adoption  of  the  compromise  measures,  which  the 
two  great  political  parties,  with  singular  unanimity,  have  af- 
firmed as  a  cardinal  article  of  their  faith,  and  proclaimed  to  the 
world,  as  a  final  settlement  of  the  controversy  and  an  end  of  the 
agitation.  A  due  respect,  therefore,  for  the  avowed  opinions  of 
Senators,  as  well  as  a  proper  sense  of  patriotic  duty,  enjoins 
upon  your  committee  the  propriety  and  necessity  of  a  strict 
adherence  to  the  principles,  and  even  a  literal  adoption  of  the 
enactments  of  that  adjustment  in  all  their  territorial  bills, 
so  far  as  the  same  are  not  locally  inapplicable.  .  .  . 
y/  From  these  provisions  it  is  apparent  that  the  compromise 
measures  of  1850  affirm  and  rest  upon  the  following  proposi- 
tions —  First :  That  all  questions  pertaining  to  slavery  in  the 
territories,  and  in  the  new  States  to  be  formed  therefrom,  are  to 
be  left  to  the  decision  of  the  people  residing  therein,  by  their 
appropriate  representatives,  to  be  chosen  by  them  for  that 
purpose. 

y/  Second :  That ' '  all  cases  involving  title  to  slaves , ' '  and  ' '  ques- 
tions of  personal  freedom"  are  referred  to  the  adjudication  of 
the  local  tribunals,  with  the  right  of  appeal  to  the  Supreme 
Court  of  the  United  States. 

^/  Third :  That  the  provisions  of  the  Constitution  of  the  United 
States,  in  respect  to  fugitives  from  service,  is  to  be  carried  into 
faithful  execution  in  all  "the  organized  territories "  the  same  as 
in  the  States.  The  substitute  for  the  bill  which  your  committee 
have  prepared,  and  which  is  commended  to  the  favorable  action 
of  the  Senate,  proposes  to  carry  these  propositions  and  prin- 
ciples into  practical  operation,  in  the  precise  language  of  the 
compromise  measures  of  1850. 


430    SLAVERY  AND  THE  CONSTITUTION 

136.  Senator  Everett  on  the  Principle  of  the  Legislation  of 

1850. ' 

The  Missouri  restriction  of  1820,  it  is  said,  is  inconsistent 
with  the  principle  of  the  legislation  of  1850.  If  anything  more  is 
meant  by  "the  principle"  of  the  legislation  of  1850,  than  the 
measures  which  were  adopted  at  that  time  in  reference  to  the 
Territories  of  New  Mexico  and  Utah  —  for  I  may  assume  that 
those  are  the  legislative  measures  referred  to  —  if  anything 
more  is  meant  than  that  a  certain  measure  was  adopted,  and 
enacted  in  reference  to  those  Territories,  I  take  issue  on  that 
point.  I  do  not  know  that  it  could  be  proved  that,  even  in  refer- 
ence to  those  Territories,  a  principle  was  enacted  at  all.  A  cer- 
tain measure,  or,  if  you  please,  a  course  of  measures,  was  en- 
acted in  reference  to  the  Territories  of  New  Mexico  and  Utah; 
but  I  do  not  know  that  you  can  call  this  enacting  a  principle. 
It  is  certainly  not  enacting  a  principle  which  is  to  carry  with 
it  a  rule  for  other  Territories  lying  in  other  parts  of  the  country, 
and  in  a  different  legal  position.  As  to  the  principle  of  non- 
intervention on  the  part  of  Congress  in  the  question  of  slavery, 
I  do  not  find  that,  either  as  principle  or  as  measure,  it  was  en- 
acted in  those  territorial  bills  of  1850.  I  do  not,  unless  I  have 
greatly  misread  them,  find  that  there  is  anything  at  all  which 
comes  up  to  that.  Every  legislative  act  of  those  territorial 
governments  must  come  before  Congress  for  allowance  or  dis- 
allowance, and  under  those  bills,  without  repealing  them,  with- 
out departing  from  them  in  the  slightest  degree,  it  would  be  com- 
petent for  Congress  to-morrow  to  pass  any  law  on  that  subject. 

How  then  can  it  be  said  that  the  principle  of  non-interven- 
tion on  the  part  of  Congress  in  the  subject  of  slavery  was  en- 
acted and  estabHshed  by  the  compromise  measures  of  1850? 
But,  whether  that  be  so  or  not,  how  can  you  find,  in  a  simple 
measure  applying  in  terms  to  these  individual  Territories,  and 
to  them  alone,  a  rule  which  is  to  govern  all  other  Territories 
with  a  retrospective  and  with  a  prospective  action  ?  Is  it  not  a 

^  Februarys,  1854.  Congressional  Globe,  2,2)  Cong.,  i  Sess.,  App.,  160-62 
passim. 


POPULAR  SOVEREIGNTY  431 

mere  begging  of  the  question  to  say  that  those  compromise 
measures,  adopted  in  this  specific  case,  amount  to  such  a 
general  rule  ? 

But,  let  us  try  it  in  a  parallel  case.  In  the  earher  land  legis- 
lation of  the  United  States,  it  was  customary,  without  excep- 
tion, when  a  territory  became  a  State,  to  require  that  there 
should  be  a  stipulation  in  their  State  constitution  that  the  pub- 
lic lands  sold  within  their  borders  should  be  exempted  from 
taxation  for  five  years  after  the  sale.  This,  I  believe,  continued 
to  be  the  uniform  practice  down  to  the  year  1820,  when  the 
State  of'Missouri  was  admitted.  She  was  admitted  under  this 
stipulation.  If  I  mistake  not,  the  next  State  which  was  ad- 
mitted into  the  Union  —  but  it  is  not  im.portant  whether  it  was 
the  next  or  not  —  came  in  without  that  stipulation,  and  they 
were  left  free  to  tax  the  public  lands  the  moment  when  they 
were  sold.  Here  was  a  principle;  as  much  a  principle  as  it  is 
contended  was  established  in  the  Utah  and  New  Mexico  ter- 
ritorial bill;  but  did  any  one  suppose  that  it  acted  upon  the 
other  Territories  ?  I  believe  the  whole  system  is  now  abolished 
under  the  operation  of  general  laws,  and  the  influence  of  that 
example  may  have  led  to  the  change.  But,  until  it  was  made  by 
legislation,  the  mere  fact  that  pubhc  lands  sold  in  Arkansas, 
were  immediately  subject  to  taxation,  could  not  alter  the  law  in 
regard  to  the  public  lands  sold  in  Missouri,  or  in  any  other 
State  where  they  were  exempt. 

There  is  a  case  equally  analogous  to  the  very  matter  we  are 
now  considering  —  the  prohibition  or  permission  of  slavery. 
The  ordinance  of  1787  prohibited  slavery  in  the  territory  north- 
west of  the  Ohio.  In  1 790  Congress  passed  an  act  accepting  the 
cession  which  the  State  of  North  Carolina  had  made  of  the 
western  part  of  her  territory,  with  the  proviso,  that  in  reference 
to  the  territory  thus  ceded  Congress  should  pass  no  laws  "tend- 
ing to  the  emancipation  of  slaves."  Here  was  a  precisely  paral- 
lel case.  Here  was  territory  in  which,  in  1787,  slavery  was  pro- 
hibited. Here  was  territory  ceded  by  North  Carolina,  which 
became  the  territory  of  the  United  States  south  of  the  Ohio,  in 
reference  to  which  it  was  stipulated  with  North  Carolina,  that 


432    SLAVERY  AND  THE  CONSTITUTION 

Congress  should  pass  no  laws  tending  to  the  emancipation  of 
slaves.  But  I  believe  it  never  occurred  to  any  one  that  the  legis- 
lation of  1790  acted  back  upon  the  ordinance  of  1787,  or  fur- 
nished a  rule  by  which  any  effect  could  be  produced  upon  the 
state  of  things  existing  under  that  ordinance,  in  the  territory  to 
which  it  applied.  .  .  . 

Look  at  the  words  of  the  acts  themselves.  They  are  specific. 
They  give  you  boundaries.  The  Hnes  are  run.  The  Territories 
are  geographically  marked  out.  They  fill  a  particular  place  on 
the  map  of  the  continent ;  and  it  is  provided  that  within  those 
specific  geographical  limits  a  certain  state  of  things,  with  refer- 
ence to  slavery  shall  exist.  That  is  all.  There  is  not  a  word 
which  states  on  what  principle  that  is  done.  There  is  not  a 
word  to  tell  you  that  that  state  of  things  carries  with  it  a  rule 
which  is  to  operate  elsewhere  —  retrospectively  upon  territory 
acquired  in  1803,  and  prospectively  on  territory  that  shall  be 
acquired  to  the  end  of  tim-e.  There  is  not  a  word  to  carry  the 
operation  of  those  measures  over  the  geographical  boundary 
which  is  laid  down  in  the  bills  themselves. 

It  would  be  singular  if,  under  any  circumstances  the  meas- 
ures adopted  should  have  this  extended  effect,  without  any 
words  to  indicate  it.    It  would  be  singular,  if  there  was  nothing 
that  stood  in  the  way;  but  when  you  consider  that  there  is  a 
positive  enactment  in  the  way  —  the  eighth  section  of  the 
Missouri  law,  which  you  now  propose  to  repeal  because  it  does 
stand  in  the  way  —  how  can  you  think  that  these  enactments 
of  1850  in  reference  to  Utah  and  New  Mexico  were  intended 
to  overleap  these  boundaries  in  the  face  of  positive  law  to  the 
contrary,  and  to  fall  upon  and  decide  the  organization  of  Terri- 
tories in  a  region  purchased  from  France  nearly  fifty  years 
before,  and  subject  to  a  distinct  specific  legislative  provision. 
.  .  .  Sir,  it  is  to  me  a  most  singular  thing  that  words  of  ex- 
tension in  1854  should  be  thought  necessary  in  this  bill  to 
give  the  effect  supposed  to  have  been  intended  to  the  provis- 
ions of  the  acts  of  1850,  and  that  it  should  not  be  thought 
necessary  in  1850  to  put  these  words  of  extension  into  the 
original  bills  themselves. 


POPULAR  SOVEREIGNTY  433 

Now,  sir,  let  us  look  at  the  debates  which  took  place  at  that 
time,  because  of  course,  one  may  always  gather  much  more 
from  the  debates  on  one  side  and  the  other  on  any  great  ques- 
tion, as  to  the  intention  and  meaning  of  a  law,  than  can  be 
gathered  from  the  words  of  the  statute  itself.  I  have  not  had 
time  to  read  these  debates  fully.  That  is  what  I  complained  of 
in  the  beginning.  I  have  not  had  time  to  read,  as  thoroughly  as 
I  could  wish,  those  voluminous  reports  —  for  they  fill  the 
greater  part  of  two  or  three  thick  quarto  volumes;  but  in  what  I 
have  read,  I  do  not  find  a  single  word  from  which  it  appears 
that  any  member  of  the  Senate  or  House  of  Representatives,  at 
that  time,  believed  that  the  territorial  enactments  of  1850, 
either  as  principle,  or  rule,  or  precedent,  or  by  analogy,  or  in 
any  other  way,  were  to  act  retrospectively  or  prospectively 
upon  any  other  Territory.  On  the  contrary,  I  find  much,  very 
much,  of  a  broad,  distinct,  directly  opposite  bearing.  .  .  . 

A  single  word,  sir,  in  respect  to  this  supposed  principle  of 
non-intervention  on  the  part  of  Congress  in  the  subject  of  slav- 
ery in  the  Territories.  .  .  .  Why,  sir,  from  the  first  enactment 
in  1789,  down  to  the  bill  before  us,  there  is  no  such  principle  in 
our  legislation.  As  far  as  I  can  see  it  would  be  perfectly  compet- 
ent even  now  for  Congress  to  pass  any  law  that  they  pleased 
on  the  subject  in  the  Territories  under  this  bill.  But.  however 
that  may  be,  even  by  this  bill,  there  is  not  a  law  which  the 
Territories  can  pass,  admitting  or  excluding  slaver>',  which  it 
is  not  in  the  power  of  this  Congress  to  disallow  the  next  day. 
This  is  not  a  mere  brutum  fulmen.  It  is  not  an  unexecuted 
power.  Your  statute-book  shows  case  after  case.  I  believe,  in 
reference  to  a  single  Territory,  that  there  have  been  fifteen  or 
twenty  cases  where  territorial  legislation  has  been  disallowed 
by  Congress.  .  .  . 

137.  Senator  Douglas  on  the  Principle  of  Popular  Sovereignty} 

The  principle  which  we  propose  to  carry  into  effect  by  the 
bill  is  this:  That  Congress  shall  neither  legislate  slavery-  into 

^  March  3,  1854.  Congressional  Globe,  S3  Cong.,  i  Sess.,  App.,  326-37 
passim. 


434    SLAVERY  AND  THE  CONSTITUTION 

any  Territories  or  State,  nor  out  of  the  same;  but  the  people 
shall  be  left  free  to  regulate  their  domestic  concerns  in  their 
ovm  way,  subject  only  to  the  Constitution  of  the  United  States. 

In  order  to  carry  this  principle  into  practical  operation,  it 
becomes  necessary  to  remove  whatever  legal  obstacles  might  be 
found  in  the  way  of  its  free  exercise.  It  is  only  for  the  purpose 
of  carrying  out  this  great  fundamental  principle  of  self-govern- 
ment that  the  bill  renders  the  eighth  section  of  the  Missouri  act 
inoperative  and  void.  .  .  . 

Any  Senator  who  will  take  the  trouble  to  examine  our  Jour- 
nals, will  find  that  on  the  25th  of  March  of  that  year  I  reported 
from  the  Committee  on  Territories  two  bills  including  the  fol- 
lowing measures :  the  admission  of  California,  a  territorial  gov- 
ernment for  Utah,  a  territorial  government  for  New  Mexico, 
and  the  adjustment  of  the  Texas  boundary.  These  bills  pro- 
posed to  leave  the  people  of  Utah  and  New  Mexico  free  to  de- 
cide the  slavery  question  for  themselves,  in  the  precise  language 
of  the  Nebraska  bill  now  under  discussion.  A  few  weeks  after- 
wards the  committee  of  thirteen  took  those  two  bills  and  put  a 
wafer  between  them,  and  reported  them  back  to  the  Senate  as 
one  bill,  with  some  slight  amendments.  One  of  those  amend- 
ments was,  that  the  Territorial  Legislatures  should  not  legislate 
upon  the  subject  of  African  slavery.  I  objected  to  that  provi- 
sion upon  the  groimd  that  it  subverted  the  great  principle  of 
self-government  upon  which  the  bill  had  been  originally  framed 
by  the  Territorial  Committee.  On  the  first  trial,  the  Senate 
refused  to  strike  it  out,  but  subsequently  did  so,  after  full  de- 
bate, in  order  to  establish  that  principle  as  the  rule  of  action  in 
territorial  organization.  ... 

Upon  this  point  I  trust  I  will  be  excused  for  reading  one  or 
two  sentences  from  some  remarks  I  made  in  the  Senate  on  the 
3d  of  June,  1850: 

"The position  that  I  have  ever  taken  has  been  that  this  [the 
slavery  question],  and  all  questions  relating  to  the  domestic 
affairs  and  domestic  policy  of  the  Territories,  ought  to  be  left 
to  the  decision  of  the  people  themselves,  and  that  we  ought  to 
be  content  with  whatever  way  they  would  decide  the  question, 


POPULAR  SOVEREIGNTY  435 

because  they  have  a  much  deeper  interest  in  these  matters  than 
we  have,  and  know  much  better  what  institutions  suit  them 
than  we,  who  have  never  been  there,  can  decide  for  them." 

Now,  sir,  what  becomes  of  the  declaration  which  has  been 
made  by  nearly  every  opponent  of  this  bill,  that  nobody  in  this 
whole  Union  ever  dreamed  that  the  principle  of  the  Utah  and 
New  Mexican  bill  was  to  be  incorporated  into  all  future  terri- 
torial organizations  ?  .  .  . 

Now,  sir,  if  these  gentlemen  have  entire  confidence  in  the 
correctness  of  their  own  position,  why  do  they  not  meet  the 
issue  boldly  and  fairly,  and  controvert  the  soundness  of  this 
great  principle  of  popular  sovereignty  in  obedience  to  the  Con- 
stitution ?  They  know  full  well  that  this  was  the  principle  upon 
which  the  colonies  separated  from  the  crown  of  Great  Britain; 
the  principle  upon  which  the  battles  of  the  Revolution  were 
fought,  and  the  principle  upon  which  our  republican  system 
was  founded.  They  cannot  be  ignorant  of  the  fact,  that  the 
Revolution  grew  out  of  the  assertion  of  the  right  on  the  part 
of  the  imperial  Government  to  interfere  with  the  internal  affairs 
and  domestic  concerns  of  the  colonies.  .  .  . 

I  will  not  weary  the  Senate  in  multiplying  evidence  upon  this 
point.  It  is  apparent  that  the  Declaration  of  Independence  had 
its  origin  in  the  violation  of  that  great  fundamental  prmciple 
which  secured  to  the  people  of  the  colonies  the  right  to  regulate 
their  own  domestic  affairs  in  their  own  way;  and  that  the  Revo- 
lution resulted  in  the  triumph  of  that  principle,  and  the  recog- 
nition of  the  right  asserted  by  it.  ,  .  .  It  is  the  same  doctrine, 
when  applied  to  the  Territories  and  new  States  of  this  Union, 
which  the  British  Government  attempted  to  enforce  by  the 
sword  upon  the  American  colonies.  It  is  this  fundamental 
principle  of  self-government  which  constitutes  the  distinguish- 
ing feature  of  the  Nebraska  bill.  .  .  . 


CHAPTER  XLVII 

DRED    SCOTT   V.    SAXDFORD 

The  pertinent  facts  in  the  history  of  the  Dred  Scott  case  may  be  briefly 
stated.  Dred  Scott,  a  negro  belonging  to  Dr.  Emerson,  of  the  United 
States  Army,  had  been  taken  by  his  master  in  1834  from  IMissouri  to  Rock 
Island  in  the  State  of  IMinois.  Two  years  later  he  was  taken  to  Fort 
Snelling  in  the  northern  part  of  the  territory  acquired  from  France  in 
1803,  in  which  slavery  had  been  forbidden  by  the  Missouri  Compromise. 
He  there  married.  In  1838,  Dr.  Emfson  returned  to  Missouri  with  Scott 
and  his  family.  In  1847,  Dred  Scott  brought  suit  in  the  circuit  court  of 
the  State  of  Missouri  to  recover  his  freedom.  Judgment  was  rendered  in 
his  favor,  but  in  the  supreme  court  of  the  State,  to  which  the  case  was 
taken  on  appeal,  the  judgment  was  reversed.  Meantime  Scott  and  his 
family  had  been  made  over  to  Sandford,  a  citizen  of  New  York;  and 
though  his  case  w^as  still  in  the  state  court,  he  brought  suit  against  Sand- 
ford  to  assert  the  title  of  himself  and  his  family  to  freedom.  The  case  of 
Scott  V.  Sandford  —  in  form  a  suit  between  citizens  of  different  States 
—  was  tried  in  the  Circuit  Court  of  the  United  States  for  the  district  of 
Missouri.  Sandford  pleaded  that  this  could  not  be  a  suit  between  citizens 
of  different  States  because  Scott  was  not  a  citizen  of  ]\Iissouri,  being  "a 
negro  of  pure  African  descent."  The  court  overruled  this  plea,  but  sus- 
tained the  defendant  on  other  grounds.  The  case  was  then  appealed  on 
writ  of  error  to  the  Supreme  Court  of  the  United  States.  Seven  of  the 
nine  judges  concurred  in  the  judgment  that  Scott  was  not  a  citizen  of 
Missouri  and  that  therefore  the  Circuit  Court  had  no  jurisdiction  in  the 
case;  six  judges  concurred  in  declaring  the  Missouri  Compromise  uncon- 
stitutional. What  is  commonl)^  called  the  opinion  of  the  Court  hardly 
merits  the  term,  for  none  of  the  concurring  judges  accepted  fully  the 
process  of  reasoning  by  which  the  Chief  Justice  justified  the  judgment  of 
the  Court.  On  the  technical  question  as  to  whether  the  plea  in  abatement 
was  properly  before  the  Court  and  on  the  further  question  as  to  the 
propriety  of  the  so-called  dictum  relating  to  the  Missouri  Compromise, 
the  reader  may  consult  with  profit  an  article  on  "The  Dred  Scott  De- 
cision," by  Edward  S.  Corwin,  in  the  American  Historical  Raiew  for 
October,  1911.  Extracts  from  Justice  Curtis's  dissenting  opinion  are 
appended  to  indicate  the  issue  between  him  and  Chief  Justice  Taney  as 
to  the  sources  of  citizenship  within  the  recognition  of  the  Constitution. 

138.  Dred  Scott,  Plaintif  in  Error,  v.  John  F.  A.  Sandford} 
Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  Court: 

'  Supreme  Court  of  the  United  States,  1857.   19  Howard,  393. 


DRED  SCOTT  v.  SANDFORD  437 

There  are  two  leading  questions  presented  by  the  record : 

1.  Had  the  Circuit  Court  of  the  United  States  jurisdiction  to 
hear  and  determine  the  case  between  these  parties?  And 

2.  If  it  had  jurisdiction,  is  the  judgment  it  has  given  errone- 
ous or  not?  .  .  . 

Before  we  speak  of  the  pleas  in  bar,  it  will  be  proper  to  dispose 
of  the  questions  which  have  arisen  on  the  plea  in  abatement. 

That  plea  denies  the  right  of  the  plaintiff  to  sue  in  a  court  of 
the  United  States,  for  the  reasons  therein  stated.  ...  It  is 
suggested,  however,  that  this  plea  is  not  before  us.  .  .  .  We 
think  they  [the  plea  and  the  judgment  of  the  court  upon  it]  are 
before  us  .  .  .  and  it  becomes,  therefore,  our  duty  to  decide 
whether  the  facts  stated  in  the  plea  are  or  are  not  sufficient  to 
show  that  the  plaintiff  is  not  entitled  to  sue  as  a  citizen  in  a 
court  of  the  United  States.  .  .  . 

The  question  is  simply  this:  Can  a  negro,  whose  ancestors 
were  imported  into  this  country,  and  sold  as  slaves,  become  a 
member  of  the  political  community  formed  and  brought  into 
existence  by  the  Constitution  of  the  United  States,  and  as  such 
become  entitled  to  all  the  rights,  privileges  and  immunities, 
guarantied  by  that  instrument  to  the  citizen?  One  of  which 
rights  is  the  privilege  of  suing  in  a  court  of  the  United  States  in 
the  cases  specified  in  the  Constitution.  .  .  . 

In  discussing  this  question,  we  must  not  confound  the 
rights  of  citizenship  which  a  State  may  confer  within  its  own 
limits,  and  the  rights  of  citizenship  as  a  member  of  the  Union. 
It  does  not  by  any  means  follow,  because  he  has  all  the  rights 
and  privileges  of  a  citizen  of  a  State,  that  he  must  be  a  citizen  of 
the  United  States.  He  may  have  all  the  rights  and  privileges  of 
the  citizen  of  a  State,  and  yet  not  be  entitled  to  the  rights  and 
privileges  of  a  citizen  in  any  other  State.  For,  previous  to  the 
adoption  of  the  Constitution  of  the  United  States,  every  State 
had  the  undoubted  right  to  confer  on  whomsoever  it  pleased 
the  character  of  citizen,  and  to  endow  him  with  all  its  rights. 
But  this  character  of  course  was  confined  to  the  boundaries  of 
the  State,  and  gave  him  no  rights  or  privileges  in  other  States 
beyond  those  secured  to  him  by  the  laws  of  nations  and  the 


438    SLAVERY  AND  THE  CONSTITUTION 

comity  of  States.  Nor  have  the  several  States  surrendered  the 
power  of  conferring  these  rights  and  privileges  by  adopting  the 
Constitution  of  the  United  States.  Each  State  may  still  confer 
them  upon  an  aHen,  or  any  one  it  thinks  proper,  or  upon  any 
class  or  description  of  persons;  yet  he  would  not  be  a  citizen  in 
the  sense  in  which  that  word  is  used  in  the  Constitution  of  the 
United  States,  nor  entitled  to  sue  as  such  in  one  of  its  courts, 
nor  to  the  privileges  and  immunities  of  a  citizen  in  the  other 
States.  The  rights  which  he  would  acquire  would  be  restricted 
to  the  State  which  gave  them.  The  Constitution  has  conferred 
on  Congress  the  right  to  establish  an  uniform  rule  of  naturaliza- 
tion, and  this  right  is  evidently  exclusive,  and  has  always  been 
held  by  this  court  to  be  so.  Consequently,  no  State,  since  the 
adoption  of  the  Constitution,  can,  by  naturalizing  an  alien, 
invest  him  with  the  rights  and  privileges  secured  to  a  citizen 
of  a  State  under  the  Federal  Government,  although,  so  far  as 
the  State  alone  was  concerned,  he  would  undoubtedly  be  en- 
titled to  the  rights  of  a  citizen,  and  clothed  with  all  the  rights 
and  immunities  which  the  Constitution  and  laws  of  the  State 
attached  to  that  character.  .  .  . 

It  is  true,  every  person,  and  every  class  and  description  of 
persons,  who  were  at  the  time  of  the  adoption  of  the  Constitu- 
tion recognized  as  citizens  in  the  several  States,  became  also 
citizens  of  this  new  political  body;  but  none  other;  it  was 
formed  by  them.,  and  for  them  and  their  posterity,  but  for  no 
one  else.  And  the  personal  rights  and  privileges  guarantied  to 
citizens  of  this  new  sovereignty  were  intended  to  embrace  those 
only  who  were  then  members  of  the  several  State  communities, 
or  who  should  afterwards,  by  birthright  or  otherwise,  become 
m.embers,  according  to  the  provisions  of  the  Constitution  and 
the  principles  on  which  it  was  founded.  .  .  . 

It  becomes  necessary,  therefore,  to  determine  who  were  citi- 
zens of  the  several  States  when  the  Constitution  was  adopted. 
And  in  order  to  do  this,  we  must  recur  to  the  Governments  and 
institutions  of  the  thirteen  colonies,  when  they  separated  from 
Great  Britain  and  formed  new  sovereignties,  and  took  their 
places  in  the  family  of  independent  nations.  .  .  . 


DRED  SCOTT  v.  SANDFORD  439 

In  the  opinion  of  the  court,  the  legislation  and  histories  of  the 
times,  and  the  language  used  in  the  Declaration  of  Indepen- 
dence, show,  that  neither  the  class  of  persons  who  had  been 
imported  as  slaves,  nor  their  descendants,  whether  they  had 
become  free  or  not,  were  then  acknowledged  as  a  part  of  the 
people,  nor  intended  to  be  included  in  the  general  words  used 
in  that  memorable  instrument.  .  .  . 

They  had  for  more  than  a  century  before  been  regarded  as 
beings  of  an  inferior  order,  and  altogether  unfit  to  associate 
with  the  white  race,  either  in  social  or  political  relations;  and  so 
far  inferior,  that  they  had  no  rights  which  the  white  man  was 
bound  to  respect;  and  that  the  negro  might  justly  and  lawfully 
be  reduced  to  slavery  for  his  benefit.  .  .  . 

The  legislation  of  the  States  therefore  shows,  in  a  manner  not 
to  be  mistaken,  the  inferior  and  subject  condition  of  that  race 
at  the  time  the  Constitution  was  adopted,  and  long  afterwards, 
throughout  the  thirteen  States  by  which  that  instrument  was 
framed;  and  it  is  hardly  consistent  with  the  respect  due  to  these 
States,  to  suppose  that  they  regarded  at  that  time,  as  fellow- 
citizens  and  members  of  the  sovereignty,  a  class  of  beings  whom 
they  had  thus  stigmatized;  whom,  as  we  are  bound,  out  of 
respect  to  the  State  sovereignties,  to  assume  they  had  deemed 
it  just  and  necessary  thus  to  stigmatize,  and  upon  whom  they 
had  impressed  such  deep  and  enduring  marks  of  inferiority  and 
degradation;  or,  that  when  they  met  in  convention  to  form  the 
Constitution,  they  looked  upon  them  as  a  portion  of  their  con- 
stituents, or  designed  to  include  them  in  the  provisions  so  care- 
fully inserted  for  the  security  and  protection  of  the  liberties  and 
rights  of  their  citizens.  It  cannot  be  supposed  that  they  in- 
tended to  secure  to  them  rights,  and  privileges,  and  rank,  in  the 
new  political  body  throughout  the  Union,  which  every  one  of 
them  denied  within  the  limits  of  its  own  dominion.  More 
especially,  it  cannot  be  believed  that  the  large  slave-holding 
States  regarded  them  as  included  in  the  word  citizens,  or  would 
have  consented  to  a  constitution  which  might  compel  them  to 
receive  them  in  that  character  from  another  State.  .  .  . 

To  all  this  mass  of  proof  we  have  still  to  add,  that  Congress 


440    SLAVERY  AND  THE  CONSTITUTION 

has  repeatedly  legislated  upon  the  same  construction  of  the 
Constitution  that  we  have  given.  .  .  . 

The  conduct  of  the  Executive  Department  of  the  Govern- 
ment has  been  in  perfect  harmony  upon  this  subject  with  this 
course  of  legislation.  .  .  . 

And  upon  a  full  and  careful  consideration  of  the  subject,  the 
court  is  of  opinion,  that,  upon  the  facts  stated  in  the  plea  in 
abatement,  Dred  Scott  was  not  a  citizen  of  Missouri  within 
the  meaning  of  the  Constitution  of  the  United  States,  and  not 
entitled  as  such  to  sue  in  its  courts;  and,  consequently,  that  the 
Circuit  Court  had  no  jurisdiction  of  the  case,  and  that  the 
judgment  on  the  plea  in  abatement  is  erroneous.  .  .  . 

We  proceed,  therefore,  to  inquire  whether  the  facts  relied 
on  by  the  plaintiff  entitled  him  to  his  freedom.  .  .  . 

In  considering  this  part  of  the  controversy,  two  questions 
arise:  i.  Was  he,  together  with  his  family,  free  in  Missouri 
by  reason  of  the  stay  in  the  territory  of  the  United  States 
hereinbefore  mentioned?  And  2.  If  they  were  not,  is  Scott 
himself  free  by  reason  of  his  removal  to  Rock  Island,  in  the 
State  of  Illinois,  as  stated  in  the  above  admissions? 

We  proceed  to  examine  the  first  question. 

The  counsel  for  the  plaintiff  has  laid  much  stress  upon  that 
article  in  the  Constitution  which  confers  on  Congress  the 
power  "to  dispose  of  and  make  all  needful  rules  and  regula- 
tions respecting  the  territory  or  other  property  belonging  to  the 
United  States;"  but,  in  the  judgment  of  the  court,  that  provi- 
sion has  no  bearing  on  the  present  controversy,  and  the  power 
there  given,  whatever  it  may  be,  is  confined,  and  was  intended 
to  be  confined,  to  the  territory  which  at  that  time  belonged  to, 
or  was  claimed  by,  the  United  States,  and  was  within  their 
boundaries  as  settled  by  the  treaty  with  Great  Britain,  and  can 
have  no  influence  upon  a  territory  afterwards  acquired  from  a 
foreign  Government.  It  was  a  special  provision  for  a  known 
and  particular  territory,  and  to  meet  a  present  emergency,  and 
nothing  more.  .  .  . 

At  the  time  when  the  territory  in  question  was  obtained  by 
cession  from  France,  it  contained  no  population  fit  to  be  asso- 


DRED  SCOTT  v.   SANDFORD  441 

ciated  together  and  admitted  as  a  State;  and  it  therefore  was 
absolutely  necessary  to  hold  possession  of  it,  as  a  Territory 
belonging  to  the  United  States,  until  it  was  settled  and  inhab- 
ited by  a  civilized  community  capable  of  self-government,  and 
in  a  condition  to  be  admitted  on  equal  terms  with  the  other 
States  as  a  member  of  the  Union.  But,  as  we  have  before  said, 
it  was  acquired  by  the  General  Government,  as  the  representa- 
tive and  trustee  of  the  people  of  the  United  States,  and  it  must 
therefore  be  held  in  that  character  for  their  common  and  equal 
benefit;  for  it  was  the  people  of  the  several  States,  acting 
through  their  agent  and  representative,  the  Federal  Govern- 
ment, who  in  fact  acquired  the  Territory  in  question,  and  the 
Government  holds  it  for  their  common  use  until  it  shall  be 
associated  with  the  other  States  as  a  member  of  the  Union. 

But  until  that  time  arrives,  it  is  undoubtedly  necessary  that 
some  Government  should  be  established,  in  order  to  organize 
society,  and  to  protect  the  inhabitants  in  their  persons  and 
property;  and  as  the  people  of  the  United  States  could  act  in 
this  matter  only  through  the  Government  which  represented 
them,  and  through  which  they  spoke  and  acted  when  the 
Territory  was  obtained,  it  was  not  only  within  the  scope  of  its 
powers,  but  it  was  its  duty  to  pass  such  laws  and  establish 
such  a  Government  as  would  enable  those  by  whose  authority 
they  acted  to  reap  the  advantages  anticipated  from  its  acquisi- 
tion, and  to  gather  there  a  population  which  would  enable  it 
to  assume  the  position  to  which  it  was  destined  among  the 
States  of  the  Union.  .  .  .  But  the  power  of  Congress  over  the 
person  or  property  of  a  citizen  can  never  be  a  mere  discretion- 
ary power  under  our  Constitution  and  form  of  Government. 
The  powers  of  the  Government  and  the  rights  and  privileges 
of  the  citizen  are  regulated  and  plainly  defined  by  the  Consti- 
tution itself.  .  .  .  Thus  the  rights  of  property  are  united  with 
the  rigl\ts  of  person,  and  placed  on  the  same  ground  by  the  fifth 
amendm.ent  to  the  Constitution,  which  provides  that  no  person 
shall  be  deprived  of  life,  liberty,  and  property,  without  due 
process  of  law.  And  an  act  of  Congress  which  deprives  a  citizen 
of  the  United  States  of  his  liberty  or  property,  merely  because 


442    SLAVERY  AND  THE  CONSTITUTION 

he  came  himself  or  brought  his  property  into  a  particular 
Territory  of  the  United  States,  and  who  had  conmiitted  no 
offense  against  the  laws,  could  hardly  be  dignified  with  the 
nam.e  of  due  process  of  law.  .  .  . 

Now,  as  we  have  already  said  in  an  earlier  part  of  this 
opinion,  upon  a  different  point,  the  right  of  property  in  a  slave 
is  distinctly  and  expressly  affirmed  in  the  Constitution.  The 
right  to  traffic  in  it,  like  an  ordinary  article  of  merchandise  and 
property,  was  guaranteed  to  the  citizens  of  the  United  States, 
in  every  State  that  might  desire  it,  for  twenty  years.  And  the 
Government  in  express  terms  is  pledged  to  protect  it  in  all 
future  time,  if  the  slave  escap>es  from  his  owner.  This  is  done 
in  plain  words  —  too  plain  to  be  misunderstood.  And  no  word 
can  be  found  in  the  Constitution  which  gives  Congress  a  greater 
power  over  slave  property,  or  which  entitles  property  of  that 
kind  to  less  protection  than  property  of  any  other  description. 
The  only  power  conferred  is  the  power  coupled  with  the  duty 
of  guarding  and  protecting  the  owner  in  his  rights. 

Upon  these  considerations,  it  is  the  opinion  of  the  court  that 
the  act  of  Congress  which  prohibited  a  citizen  from  holding 
or  owning  property  of  this  kind  in  the  territory  of  the  United 
States  north  of  the  line  therein  mentioned,  is  not  warranted 
by  the  Constitution,  and  is  therefore  void;  and  that  neither 
Dred  Scott  himself,  nor  any  of  his  family,  were  made  free  by 
being  carried  into  this  territory;  even  if  they  had  been  carried 
there  by  the  owner,  with  the  intention  of  becoming  a  perma- 
nent resident.  .  .  . 

But  there  is  another  point  in  the  case  which  depends  upon 
State  power  and  State  law.  And  it  is  contended,  on  the  part 
of  the  plaintiff,  that  he  is  made  free  by  being  taken  to  Rock 
Island,  in  the  State  of  Illinois,  independently  of  his  residence 
in  the  territory  of  the  United  States;  and  being  so  made  free, 
he  was  not  again  reduced  to  a  state  of  slavery  by  being  brought 
back  to  Missouri. 

Our  notice  of  this  part  of  the  case  will  be  very  brief;  for  the 
principle  on  which  it  depends  was  decided  in  this  court,  upon 
much  consideration,  in  the  case  of  Strader  et  al.  v.  Graham, 


DRED  SCOTT  v.  SANDFORD  443 

reported  in  loth  Howard,  82.  In  that  case,  the  slaves  had  been 
taken  from  Kentucky  to  Ohio,  with  the  consent  of  the  owner, 
and  afterwards  brought  back  to  Kentucky.  And  this  court 
held  that  their  status  or  condition,  as  free  or  slave,  depended 
upon  the  laws  of  Kentucky,  when  they  were  brought  back  into 
that  State,  and  not  of  Ohio;  and  that  this  court  had  no  juris- 
diction to  revise  the  judgment  of  a  State  court  upon  its  own 
laws.  .  .  . 

So  in  this  case.  As  Scott  was  a  slave  when  taken  into  the 
State  of  Illinois  by  his  owner,  and  was  there  held  as  such,  and 
brought  back  in  that  character,  his  status,  as  free  or  slave, 
depended  on  the  laws  of  Missouri,  and  not  of  Illinois.  .  .  . 

Upon  the  whole,  therefore,  it  is  the  judgment  of  this  court, 
that  it  appears  by  the  record  before  us,  that  the  plaintiff  in 
error  is  not  a  citizen  of  Missouri,  in  the  sense  in  which  that  word 
is  used  in  the  Constitution;  and  that  the  Circuit  Court 
of  the  United  States,  for  that  reason,  had  no  jurisdiction  in 
the  case,  and  could  give  no  judgment  in  it.  Its  judgment  for 
the  defendant  must,  consequently,  be  reversed,  and  a  mandate 
issued,  directing  the  suit  to  be  dismissed  for  want  of  jurisdiction. 

Dissenting  Opinion  of  Justice  Curtis} 

.  .  .  One  mode  of  approaching  this  question  is,  to  inquire 
who  were  citizens  of  the  United  States  at  the  time  of  the 
adoption  of  the  Constitution. 

Citizens  of  the  United  States  at  the  time  of  the  adoption  of 
the  Constitution  can  have  been  no  other  than  the  citizens  of 
the  United  States  under  the  Confederation.  .  .  . 

To  determine  whether  any  free  persons,  descended  from 
Africans  held  in  slavery,  were  citizens  of  the  United  States 
under  the  Confederation,  and  consequently  at  the  time  of  the 
adoption  of  the  Constitution  of  the  United  States,  it  is  only 
necessary  to  know  whether  any  such  persons  were  citizens  of 
either  of  the  States  under  the  Confederation  at  the  time  of  the 
adoption  of  the  Constitution. 

Of  this  there  can  be  no  doubt.  At  the  time  of  the  ratification 
'  19  Howard,  393. 


444    SLAVERY  AND  THE  CONSTITUTION 

of  the  Articles  of  Confederation,  all  free  native-born  inhabitants 
of  the  States  of  New  Hampshire,  Massachusetts,  New  York, 
New  Jersey  and  North  Carolina,  though  descended  from  Af- 
rican slaves,  were  not  only  citizens  of  those  States,  but  such 
of  them  as  had  the  other  necessary  qualifications  possessed  the 
franchise  of  electors,  on  equal  terms  with  other  citizens.  .  .  . 

I  can  find  nothing  in  the  Constitution  which,  propria  vigore, 
deprives  of  their  citizenship  any  class  of  persons  who  were 
citizens  of  the  United  States  at  the  time  of  its  adoption,  or  who 
should  be  native-born  citizens  of  any  State  after  its  adoption; 
nor  any  power  enabling  Congress  to  disfrancliise  persons  born 
on  the  soil  of  any  State,  and  entitled  to  citizenship  of  such 
State  by  its  constitution  and  laws.  And  my  opinion  is,  that, 
under  the  Constitution  of  the  United  States,  every  free  person 
born  on  the  soil  of  a  State,  who  is  a  citizen  of  that  State  by 
force  of  its  constitution  or  laws,  is  also  a  citizen  of  the  United 
States.  .  .  . 

The  Constitution  having  recognized  the  rule  that  persons 
born  within  the  several  States  are  citizens  of  the  United  States, 
one  of  four  things  m.ust  be  true : 

First.  That  the  Constitution  itself  has  described  what 
native-born  persons  shall  or  shall  not  be  citizens  of  the  United 
States;  or, 

Second.  That  it  has  empowered  Congress  to  do  so;  or. 

Third.  That  all  free  persons,  born  within  the  several  States, 
are  citizens  of  the  United  States;  or, 

Fourth.  That  it  is  left  to  each  State  to  determine  what  free 
persons,  born  within  its  limits,  shall  be  citizens  of  such  State, 
and  thereby  be  citizens  of  the  United  States.  .  .  . 

The  conclusions  at  which  I  have  arrived  on  this  part  of  the 
case  are: 

First.  That  the  free  native-born  citizens  of  each  State  are 
citizens  of  the  United  States. 

Second.  That  as  free  colored  persons  born  within  some  of  the 
States  are  citizens  of  those  States,  such  persons  are  also  citi- 
zens of  the  United  States. 

Third.  That  every  such  citizen,  residing  in  any  State,  has 


DRED  SCOTT  v.   SANDFORD  445 

the  right  to  sue  and  is  liable  to  be  sued  in  the  federal  courts, 
as  a  citizen  of  that  State  in  which  he  resides. 

Fourth.  That  as  the  plea  to  the  jurisdiction  in  this  case  shows 
no  facts,  except  that  the  plaintiff  was  of  African  descent,  and 
his  ancestors  were  sold  as  slaves,  and  as  these  facts  are  not 
inconsistent  with  his  citizenship  of  the  United  States,  and  his 
residence  in  the  State  of  Missouri,  the  plea  to  the  jurisdiction 
was  bad,  and  the  judgment  of  the  Circuit  Court  overruling  it 
was  correct. 

I  dissent,  therefore,  from  that  part  of  the  opinion  of  the 
majority  of  the  court,  in  which  it  is  held  that  a  person  of 
African  descent  cannot  be  a  citizen  of  the  United  States;  .  .  . 


CHAPTER  XLVIII 

POPULAR  SOVEREIGNTY  AND  THE  DRED   SCOTT  DECISION 

The  peculiar  merit  claimed  for  the  Kansas-Nebraska  Bill  was  that  it 
would  rid  Congress  of  a  vexatious  question  by  providing  for  a  popular 
referendum  on  slavery  in  the  Territories.  Two  circumstances  prevented 
a  fair  test  of  this  device:  the  bitter  and  unexpected  struggle  between 
the  pro-slavery  and  free-soil  settlers  in  Kansas,  and  the  decision  of  the 
Supreme  Court  in  the  case  of  Pred  Scott.  Whatever  efficacy  might  still 
be  claimed  for  popular  sovereignty,  it  could  hardly  stand  as  a  principle 
of  public  law  after  the  Supreme  Court  had  registered  its  opinion  that 
Congress  might  not  prohibit  slavery  in  the  Territories.  The  senatorial 
contest  between  Douglas  and  Lincoln  in  Illinois  brought  out  the  various 
aspects  of  the  constitutional  question.  The  candidates  met  in  seven  joint 
debates  through  the  State.  In  the  second  debate  at  Freeport,  Lincoln 
propounded  the  crucial  question  to  which  Douglas  here  made  reply.  The 
concluding  extract  is  from  a  speech  made  by  Lincoln  at  Columbus,  Ohio, 
in  the  following  year. 

139.  The  Freeport  Doctrine} 

The  next  question  propounded  to  me  by  Mr.  Lincoln  is, 
Can  the  people  of  a  Territory  in  any  lawful  way,  against  the 
wishes  of  any  citizen  of  the  United  States,  exclude  slavery  from 
their  limits  prior  to  the  formation  of  a  State  constitution?  I 
answer  emphatically,  as  Mr.  Lincoln  has  heard  me  answer  a 
hundred  times  from  every  stump  in  Illinois,  that  in  my  opinion 
the  people  of  a  Territory  can,  by  lawful  means,  exclude  slavery 
from  their  limits  prior  to  the  formation  of  a  State  constitution. 
Mr.  Lincoln  knew  that  I  had  answered  that  question  over  and 
over  again.  He  heard  me  argue  the  Nebraska  bill  on  that 
principle  all  over  the  State  in  1854,  in  1855,  and  in  1856,  and 
he  has  no  excuse  for  pretending  to  be  in  doubt  as  to  my  position 
on  that  question.  It  matters  not  what  way  the  Supreme  Court 
may  hereafter  decide  as  to  the  abstract  question  whether  slav- 
ery may  or  may  not  go  into  a  Territory  under  the  Constitution, 

^  Speech  of  Douglas  at  Freeport,  August  27,  1858.  The  Lincoln- 
Douglas  Debates  of  1858  (Sparks  ed.),  161-62. 


DRED  SCOTT  DECISION  447 

the  people  have  the  lawful  means  to  introduce  it  or  exclude  it 
as  they  please,  for  the  reason  that  slavery  cannot  exist  a  day 
or  an  hour  anywhere,  unless  it  is  supported  by  local  police 
regulations.  Those  police  regulations  can  only  be  established 
by  the  local  legislature;  and  if  the  people  are  opposed  to  slavery, 
they  will  elect  representatives  to  that  body  who  will  by  un- 
friendly legislation  effectually  prevent  the  introduction  of  it 
into  their  midst.  If,  on  the  contrary,  they  are  for  it,  their 
legislation  will  favor  its  extension.  Hence,  no  matter  what  the 
decision  of  the  Supreme  Court  may  be  on  that  abstract  ques- 
tion, still  the  right  of  the  people  to  make  a  Slave  Territory  or  a 
Free  Territory  is  perfect  and  complete  under  the  Nebraska 
bill.  I  hope  Mr.  Lincoln  deems  my  answer  satisfactory  on  that 
point. 

140.  Lincoln's  Reply  at  Joneshoro} 

The  second  interrogatory  that  I  propounded  to  him  was 
this :  — 

"Question  2.  Can  the  people  of  a  United  States  Territory,  in  any 
lawful  way,  against  the  wish  of  any  citizen  of  the  United  States,  exclude 
slavery  from  its  limits  prior  to  the  formation  of  a  State  Constitution?  " 

To  this  Judge  Douglas  answered  that  they  can  lawfully 
exclude  slavery  from  the  Territory  prior  to  the  formation  of  a 
Constitution.  He  goes  on  to  tell  us  how  it  can  be  done.  As  I 
understand  him,  he  holds  that  it  can  be  done  by  the  Territorial 
Legislature  refusing  to  make  any  enactments  for  the  protection 
of  slavery  in  the  Territory,  and  especially  by  adopting  un- 
friendly legislation  to  it.  For  the  sake  of  clearness,  I  state  it 
again:  that  they  can  exclude  slavery  from  the  Territory,  ist, 
by  withholding  what  he  assumes  to  be  an  indispensable  assist- 
ance to  it  in  the  way  of  legislation;  and,  2d,  by  unfriendly 
legislation.  If  I  rightly  understand  him,  I  wish  to  ask  your 
attention  for  a  while  to  his  position. 

In  the  first  place,  the  Supreme  Court  of  the  United  States 
has  decided  that  any  Congressional  prohibition  of  slavery  in 
the  Territories  is  unconstitutional;  that  they  have  reached  this 
^  September  15.    The  Lincoln-Douglas  Debates  of  1858,  242-45. 


448    SLAVERY  AND  THE  CONSTITUTION 

proposition  as  a  conclusion  from  their  former  proposition,  that 
the  Constitution  of  the  United  States  expressly  recognizes 
property  in  slaves,  and  from  that  other  Constitutional  provi- 
sion, that  no  person  shall  be  deprived  of  property  without  due 
process  of  law.  Hence  they  reach  the  conclusion  that  as  the 
Constitution  of  the  United  States  expressly  recognizes  property 
in  slaves,  and  prohibits  any  person  from  being  deprived  of 
property  without  due  process  of  law,  to  pass  an  Act  of  Congress 
by  which  a  man  who  owned  a  slave  on  one  side  of  a  line  would 
be  deprived  of  him  if  he  took  him  on  the  other  side,  is  depriving 
him  of  that  property  without  due  process  of  law.  That  I  under- 
stand to  be  the  decision  of  the  Supreme  Court.  I  understand 
also  that  Judge  Douglas  adheres  most  firmly  to  that  decision; 
and  the  difficulty  is,  how  is  it  possible  for  any  power  to  exclude 
slavery  from  the  Territory,  unless  in  violation  of  that  decision? 
That  is  the  difficulty. 

In  the  Senate  of  the  United  States,  in  1856,  Judge  Trumbull, 
in  a  speech  substantially,  if  not  directly,  put  the  same  inter- 
rogatory to  Judge  Douglas,  as  to  whether  the  people  of  a 
Territory  had  the  lawful  power  to  exclude  slavery  prior  to  the 
formation  of  a  constitution.  Judge  Douglas  then  answered  at 
considerable  length,  and  his  answer  will  be  found  in  the  Con- 
gressional Globe,  under  date  of  June  9th,  1856.  The  Judge  said 
that  whether  the  people  could  exclude  slavery  prior  to  the 
formation  of  a  constitution  or  not  was  a  question  to  he  decided 
by  the  Supreme  Court.  He  put  that  proposition,  as  will  be  seen 
by  the  Congressional  Globe,  in  a  variety  of  forms,  all  running 
to  the  same  thing  in  substance,  —  that  it  was  a  question  for 
the  Supreme  Court.  I  maintain  that  when  he  says,  after  the 
Supreme  Court  have  decided  the  question,  that  the  people  may 
yet  exclude  slavery  by  any  means  whatever,  he  does  virtually 
say  that  it  is  not  a  question  for  the  Supreme  Court. 

He  shifts  his  ground.  I  appeal  to  you  whether  he  did  not  say 
it  was  a  question  for  the  Supreme  Court?  Has  not  the  Supreme 
Court  decided  that  question?  When  he  now  says  the  people 
may  exclude  slavery,  does  he  not  make  it  a  question  for  the 
people?  Does  he  not  virtually  shift  his  ground  and  say  that  it  is 


DRED  SCOTT  DECISION  449 

not  a  question  for  the  court,  but  for  the  people?  This  is  a  very 
simple  proposition,  —  a  very  plain  and  naked  one.  It  seems  to 
me  that  there  is  no  difficulty  in  deciding  it.  In  a  variety  of  ways 
he  said  that  it  was  a  question  for  the  Supreme  Court.  He  did 
not  stop  then  to  tell  us  that  whatever  the  Supreme  Court  decides, 
the  people  can  by  withholding  necessary  "poHce  regulations" 
keep  slavery  out.  He  did  not  make  any  such  answer.  I  submit 
to  you  now  whether  the  new  state  of  the  case  has  not  induced 
the  Judge  to  sheer  away  from  his  original  ground.  Would  not 
this  be  the  impression  of  every  fair-minded  man? 

I  hold  that  the  proposition  that  slavery  cannot  enter  a  new 
country  without  poHce  regulations  is  historically  false.  It  is 
not  true  at  all.  I  hold  that  the  history  of  this  country  shows 
that  the  institution  of  slavery  was  originally  planted  upon  this 
continent  without  these  "police  regulations"  which  the  Judge 
now  thinks  necessary  for  the  actual  establishment  of  it.  Not 
only  so,  but  is  there  not  another  fact :  how  came  this  Dred  Scott 
decision  to  be  made?  It  was  made  upon  the  case  of  a  negro 
being  taken  and  actually  held  in  slavery  in  Minnesota  Terri- 
tory, claiming  his  freedom  because  the  Act  of  Congress  pro- 
hibited his  being  so  held  there.  Will  the  Judge  pretend  that  Dred 
Scott  was  not  held  there  without  police  regulations  ?  There  is  at 
least  one  m.atter  of  record  as  to  his  having  been  held  in  slavery 
in  the  Territory,  not  only  without  police  regulations,  but  in  the 
teeth  of  Congressional  legislation  supposed  to  be  vahd  at  the 
time.  This  shows  that  there  is  vigor  enough  in  slavery  to  plant 
itself  in  a  new  country  even  against  unfriendly  legislation.  It 
takes  not  only  law,  but  the  enforcement  of  law  to  keep  it  out. 
That  is  the  history  of  this  country  upon  the  subject. 

I  wish  to  ask  one  other  question.  It  being  understood  that  the 
Constitution  of  the  United  States  guarantees  property  in  slaves 
in  the  Territories,  if  there  is  any  infringement  of  the  right  of 
that  property,  would  not  the  United  States  courts,  organized  for 
the  government  of  the  Territory,  apply  such  remedy  as  might 
be  necessary  in  that  case?  It  is  a  maxim  held  by  the  courts 
that  there  is  no  wrong  without  its  remedy;  and  the  courts  have 
a  remedy  for  whatever  is  acknowledged  and  treated  as  a  wrong. 


450    SLAVERY  AND  THE  CONSTITUTION 

Again:  I  will  ask  you,  my  friends,  if  you  were  elected  mem- 
bers of  the  Legislature,  what  would  be  the  first  thing  you  would 
have   to   do   before   entering   upon  your   duties?  Swear   to 
support  the  Constitution  of  the  United  States.   Suppose  you  be- 
heve,  as  Judge  Douglas  does,  that  the  Constitution  of  the 
United  States  guarantees  to  your  neighbor  the  right  to  hold 
slaves  in  that  Territory;  that  they  are  his  property;  how  can 
you  clear  your  oaths  unless  you  give  him  such  legislation  as  is 
necessary  to  enable  him  to  enjoy  that  property?  What  do  you 
understand  by  supporting  the  Constitution  of  a  State,  or  of  the 
United  States?  Is  it  not  to  give  such  constitutional  helps  to  the 
rights  established  by  that  Constitution  as  may  be  practically 
needed?   Can  you,  if  you  swear  to  support  the  Constitution, 
and  beheve  that  the  Constitution  establishes  a  right,  clear  your 
oath,  without  giving  it  support?  Do  you  support  the  Constitu- 
tion if,  knowing  or  believing  there  is  a  right  established  under  it 
which  needs  specific  legislation,  you  withhold  that  legislation? 
Do  you  not  violate  and  disregard  your  oath?  I  can  conceive  of 
nothing  plainer  in  the  world.  There  can  be  nothing  in  the  words 
"support  the  Constitution,"  if  you  may  run  counter  to  it  by 
refusing  support  to  any  right  established  under  the  Constitu- 
tion. And  what  I  say  here  will  hold  with  still  more  force  against 
the  Judge's  doctrine  of  "unfriendly  legislation."   How  could 
you,  having  sworn  to  support  the  Constitution,  and  believing  it 
guaranteed  the  right  to  hold  slaves  in  the  Territories,  assist  in 
legislation  intended  to  defeat  that  right?  That  would  be  violating 
your  own  view  of  the  Constitution.  Not  only  so,  but  if  you  were 
to  do  so,  how  long  would  it  take  the  courts  to  hold  your  votes 
unconstitutional  and  void?  Not  a  moment.  .  .  . 

141.  Douglases  Rejoinder  at  Joneshoro} 

My  doctrine  is,  that  even  taking  Mr.  Lincoln's  view  that  the 
decision  recognizes  the  right  of  a  man  to  carry  his  slaves  into 
the  Territories  of  the  United  States  if  he  pleases,  yet  after  he 
gets  there  he  needs  afl&rmative  law  to  make  that  right  of  any 

^  September  15,  1858.  The  Lincoln-Douglas  Debates  of  1858  (Sparks 
ed.),  258. 


DRED  SCOTT  DECISION  451 

value.  The  same  doctrine  not  only  applies  to  slave  property, 
but  all  other  kinds  of  property.  Chief  Justice  Taney  places  it 
upon  the  ground  that  slave  property  is  on  an  equal  footing  with 
other  property.  Suppose  one  of  your  merchants  should  move 
to  Kansas  and  open  a  liquor  store:  he  has  a  right  to  take  groc- 
eries and  liquors  there;  but  the  mode  of  selling  them,  and  the 
circumstances  under  which  they  shall  be  sold,  and  all  the 
remedies,  must  be  prescribed  by  local  legislation;  and  if  that  is 
unfriendly,  it  will  drive  him  out  just  as  effectually  as  if  there 
was  a  constitutional  provision  against  the  sale  of  liquor.  So  the 
absence  of  local  legislation  to  encourage  and  support  slave 
property  in  a  Territory  excludes  it  practically  just  as  effectually 
as  if  there  was  a  positive  constitutional  provision  against  it. 

Hence,  I  assert  that  under  the  Dred  Scott  decision  you  can- 
not maintain  slavery  a  day  in  a  Territory  where  there  is  an 
unwilling  people  and  unfriendly  legislation.  If  the  people  are 
opposed  to  it,  our  right  is  a  barren,  worthless,  useless  right;  and 
if  they  are  for  it,  they  will  support  and  encourage  it.  We  come 
right  back,  therefore,  to  the  practical  question,  If  the  people  of 
a  Territory  want  slavery,  they  will  have  it;  and  if  they  do  not 
want  it,  you  cannot  force  it  on  them.  And  this  is  the  practical 
question,  the  great  principle,  upon  which  our  institutions  rest. 
I  am  willing  to  take  the  decision  of  the  Supreme  Court  as  it  was 
pronounced  by  that  august  tribunal,  without  stopping  to  in- 
quire whether  I  would  have  decided  that  way  or  not.  .  .  . 

142.  Speech  oj  Lincoln  at  Columbus,  Ohio} 
.  .  .  I  wish  to  say  something  now  in  regard  to  the  Dred  Scott 
decision,  as  dealt  with  by  Judge  Douglas.  In  that  "memorable 
debate"  between  Judge  Douglas  and  myself,  last  year,  the 
Judge  thought  fit  to  commence  a  process  of  catechising  me,  and 
at  Freeport  I  answered  his  questions,  and  propounded  some  to 
him.  Among  others  propounded  to  him  was  one  that  I  have 
here  now.  The  substance,  as  I  remember  it,  is,  "  Can  the  people 
of  a  United  States  Territory,  under  the  Dred  Scott  decision,  in 

^  September,   1859.    Political  Debates  between  Lincoln   and  Douglas 
(Columbus,  i860),  250-51  passion. 


452    SLAVERY  AND  THE  CONSTITUTION 

any  lawful  way,  against  the  wish  of  any  citizen  of  the  United 
States,  exclude  slavery  from  its  limits,  prior  to  the  formation  of 
a  State  Constitution?"  He  answered  that  they  could  lawfully 
exclude  slavery  from  the  United  States  Territories,  notwith- 
standing the  Dred  Scott  decision.  There  was  something  about 
that  answer  that  has  probably  been  a  trouble  to  the  Judge  ever 
since. 

The  Dred  Scott  decision  expressly  gives  every  citizen  of  the 
United  States  a  right  to  carry  his  slaves  into  the  United  States 
Territories.  And  now  there  was  some  inconsistency  in  saying 
that  the  decision  was  right,  and  saying,  too,  that  the  people  of 
the  Territory  could  lawfully  drive  slavery  out  again.  When  all 
the  trash,  the  words,  the  collateral  matter,  was  cleared  away 
from  it  —  all  the  chaff  was  fanned  out  of  it,  it  was  a  bare  ab- 
surdity —  no  less  than  that  a  thing  may  be  lawfully  driven  away 
from  where  it  has  a  lawful  right  to  be.  Clear  it  of  all  the  verbiage, 
and  that  is  the  naked  truth  of  his  proposition  —  that  a  thing 
may  be  lawfully  driven  from  the  place  where  it  has  a  lawful 
right  to  stay.  .  .  . 

But  I  undertake  to  give  the  opinion,  at  least,  that  if  the  Ter- 
ritories attempt  by  any  direct  legislation  to  drive  the  man  with 
his  slave  out  of  the  Territory,  or  to  decide  that  his  slave  is  free 
because  of  his  being  taken  in  there,  or  to  tax  him  to  such  an 
extent  that  he  cannot  keep  him  there,  the  Supreme  Court  will 
unhesitatingly  decide  all  such  legislation  unconstitutional,  as 
long  as  that  Supreme  Court  is  constructed  as  the  Dred  Scott 
Supreme  Court  is.  The  first  two  things  they  have  already 
decided,  except  that  there  is  a  little  quibble  among  lawyers 
between  the  words  dicta  and  decision.  They  have  already 
decided  a  negro  cannot  be  made  free  by  territorial  legisla- 
tion. .  .  . 

What  is  that  Dred  Scott  decision?  Judge  Douglas  labors  to 
show  that  it  is  one  thing,  while  I  think  it  is  altogether  different. 
It  is  a  long  opinion,  but  it  is  all  embodied  in  this  short  state- 
ment: "The  Constitution  of  the  United  States  forbids  Congress 
to  deprive  a  man  of  his  property,  without  due  process  of  law; 
the  right  of  property  in  slaves  is  distinctly  and  expressly  af- 


DRED  SCOTT  DECISION  453 

firmed  in  that  Constitution ;  therefore  if  Congress  shall  under- 
take to  say  that  a  man's  slave  is  no  longer  his  slave,  when  he 
crosses  a  certain  line  into  a  Territory,  that  is  depriving  him  of 
his  property  without  due  process  of  law,  and  is  unconstitu- 
tional." There  is  the  whole  Dred  Scott  decision.  They  add 
that  if  Congress  cannot  do  so  itself,  Congress  cannot  confer  any 
power  to  do  so,  and  hence  any  effort  by  the  Territorial  Legis- 
lature to  do  either  of  these  things  is  absolutely  decided  against. 
It  is  a  foregone  conclusion  by  that  court. 

Now,  as  to  this  indirect  mode  by  "unfriendly  legislation,"  all 
lawyers  here  will  readily  understand  that  such  a  proposition 
cannot  be  tolerated  for  a  moment,  because  a  legislature  cannot 
indirectly  do  that  which  it  cannot  accomplish  directly.  Then 
I  say  any  legislation  to  control  this  property,  as  property,  for  its 
benefit  as  property,  would  be  hailed  by  this  Dred  Scott  Su- 
preme Court,  and  fully  sustained ;  but  any  legislation  driving 
slave  property  out,  or  destroying  it  as  property,  directly  or 
indirectly,  will  most  assuredly,  by  that  court,  be  held  uncon- 
stitutional. .  .  . 


CHAPTER  XLIX 

SECESSION   AND    COERCION 

The  annual  message  of  President  Buchanan  in  i860  was  drafted  in  the 
well-founded  expectation  that  the  convention  summoned  by  the  legisla- 
ture of  South  Carohna  would  adopt  an  ordinance  of  secession.  Advised 
by  Attorney-General  Black,  the  President  interpreted  narrowly  his  pow- 
ers under  the  Act  of  1795  and  chose  to  stand  simply  on  the  defensive, 
leaving  Congress  to  pursue  the  traditional,  but  now  ineffectual,  policy  of 
compromise.  On  December  20,  the  convention  of  South  CaroHna  repealed 
the  ordinance  by  which  it  had  ratified  the  Federal  Constitution,  and  four 
days  later  declared  to  the  world  the  causes  which  had  brought  about  this 
momentous  step.  True  to  its  theory  of  the  Union,  the  convention  dis- 
patched commissioners  to  Washington  to  wind  up  the  affairs  of  the  part- 
nership, styled  the  United  States  of  America,  from  which  the  State  had 
withdrawn. 

143.  Opinion  of  Attorney-General  Black  upon  the  Powers 
of  the  President.^ 

...  I  come  now  to  the  point  in  your  letter  which  is  probably 
of  the  greatest  practical  importance.  By  the  act  of  1807  you 
may  employ  such  parts  of  the  land  and  naval  forces  as  you  shall 
judge  necessary  for  the  purpose  of  causing  the  laws  to  be  duly 
executed,  in  all  cases  where  it  is  lawful  to  use  the  militia  for  the 
same  purpose.  By  the  act  of  1795  the  militia  may  be  called 
forth  "whenever  the  laws  of  the  United  States  shall  be  opposed 
or  the  execution  thereof  obstructed  in  any  State  by  combina- 
tions too  powerful  to  be  suppressed  by  the  ordinary  course  of 
judicial  proceedings,  or  by  the  power  vested  in  the  marshals." 
This  imposes  upon  the  President  the  sole  responsibility  of 
deciding  whether  the  exigency  has  arisen  which  requires  the 
use  of  military  force;  and  in  proportion  to  the  magnitude  of 
that  responsibility  will  be  his  care  not  to  overstep  the  limits  of 
his  legal  and  just  authority. 

The  laws  referred  to  in  the  act  of  1795  are  manifestly  those 

*  November  20,  i860.  McPherson,  Political  History  of  the  United  States 
of  America  during  the  Great  Rebellion,  51-52. 


SECESSION  AND  COERCION  455 

which  are  administered  by  the  judges  and  executed  by  the 
ministerial  ofl&cers  of  the  courts  for  the  punishment  of  crime 
against  the  United  States,  for  the  protection  of  rights  claimed 
under  the  Federal  Constitution  and  laws,  and  for  the  enforce- 
ment of  such  obligations  as  come  within  the  cognizance  of  the 
Federal  Judiciary.  To  compel  obedience  to  these  laws,  the 
Courts  have  authority  to  punish  all  who  obstruct  their  regular 
administration,  and  the  marshals  and  their  deputies  have  the 
same  powers  as  sheriffs  and  their  deputies  in  the  several  States 
in  executing  the  laws  of  the  States.  These  are  the  ordinary 
means  provided  for  the  execution  of  the  laws,  and  the  whole 
spirit  of  our  system  is  opposed  to  the  employment  of  any  other 
except  in  cases  of  extreme  necessity,  arising  out  of  great  and 
unusual  combinations  against  them.  Their  agency  must  con- 
tinue to  be  used  until  their  incapacity  to  cope  with  the  power 
opposed  to  them  shall  be  plainly  demonstrated.  It  is  only 
upon  clear  evidence  to  that  effect  that  a  military  force  can  be 
called  into  the  field.  Even  then  its  operations  must  be  purely 
defensive.  It  can  suppress  only  such  combinations  as  are  found 
directly  opposing  the  laws  and  obstructing  the  execution 
thereof.  It  can  do  no  more  than  what  might  and  ought  to  be 
done  by  a  civil  posse,  if  a  civil  posse  could  be  raised  large 
enough  to  meet  the  same  opposition.  On  such  occasions 
especially  the  military  power  must  be  kept  in  strict  subordina- 
tion to  the  civil  authority,  since  it  is  only  in  aid  of  the  latter 
that  the  former  can  act  at  all.  .  .  . 

144.  President  Buchanan's  Message  of  December  j,  1860} 

...  In  order  to  justify  secession  as  a  constitutional  remedy, 
it  must  be  on  the  principle  that  the  Federal  Government  is  a 
mere  voluntary  association  of  States,  to  be  dissolved  at  pleas- 
ure by  any  one  of  the  contracting  parties.  If  this  be  so,  the 
Confederacy  is  a  rope  of  sand,  to  be  penetrated  and  dissolved 
by  the  first  adverse  wave  of  public  opinion  in  any  of  the  States. 
In  this  manner  our  thirty-three  States  may  resolve  themselves 
into  as  many  petty,  jarring,  and  hostile  republics,  each  one 

^  Richardson,  Messages  and  Papers  of  the  Presidents,  v,  630-36  passim. 


456    SLAVERY  AND  THE  CONSTITUTION 

retiring  from  the  Union  without  responsibility  whenever  any 
sudden  excitement  might  impel  them,  to  such  a  course.  By 
this  process  a  Union  m.ight  be  entirely  broken  into  fragments 
in  a  few  weeks  which  cost  our  forefathers  many  years  of  toil, 
privation,  and  blood  to  establish. 

Such  a  principle  is  wholly  inconsistent  with  the  history  as 
well  as  the  character  of  the  Federal  Government.  .  .  . 

It  was  intended  to  be  perpetual,  and  not  to  be  annulled  at 
the  pleasure  of  any  one  of  the  contracting  parties.  The  old 
Articles  of  Confederation  were  entitled  "Articles  of  Confeder- 
ation and  Perpetual  Union  between  the  States,"  and  by  the 
thirteenth  article  it  is  expressly  declared  that  *'the  articles  of 
this  Confederation  shall  be  inviolably  observed  by  every 
State,,  and  the  Union  shall  be  perpetual."  The  preamble  to  the 
Constitution  of  the  United  States,  having  express  reference  to 
the  Articles  of  Confederation,  recites  that  it  was  established 
''in  order  to  form  a  more  perfect  union."  And  yet  it  is  con- 
tended that  this  "more  perfect  union"  does  not  include  the 
essential  attribute  of  perpetuity. 

But  that  the  Union  was  designed  to  be  perpetual  appears 
conclusively  from  the  nature  and  extent  of  the  powers  con- 
ferred by  the  Constitution  on  the  Federal  Government.  These 
powers  embrace  the  very  highest  attributes  of  national  sover- 
eignty. .  .  . 

This  Government,  therefore,  is  a  great  and  powerful  Govern- 
ment, invested  with  all  the  attributes  of  sovereignty  over  the 
special  subjects  to  which  its  authority  extends.  Its  framers 
never  intended  to  implant  in  its  bosom  the  seeds  of  its  own 
destruction,  nor  were  they  at  its  creation  guilty  of  the  absurdity 
of  providing  for  its  own  dissolution.  .  .  . 

It  may  be  asked,  then.  Are  the  people  of  the  States  without 
redress  against  the  tyranny  and  oppression  of  the  Federal 
Government?  By  no  means.  The  right  of  resistance  on  the 
part  of  the  governed  against  the  oppression  of  their  govern- 
ments can  not  be  denied.  It  exists  independently  of  all  consti- 
tutions, and  has  been  exercised  at  all  periods  of  the  world's 
history.   Under  it  old  governments  have  been  destroyed  and 


SECESSION  AND  COERCION  457 

new  ones  have  taken  their  place.  It  is  embodied  in  strong 
and  express  language  in  our  own  Declaration  of  Independence. 
But  the  distinction  must  ever  be  observed  that  this  is  revolu- 
tion against  an  established  government,  and  not  a  voluntary- 
secession  from  it  by  virtue  of  an  inherent  constitutional  right. 
In  short,  let  us  look  the  danger  fairly  in  the  face.  Secession  is 
neither  more  nor  less  than  revolution.  It  may  or  it  may  not  be 
a  justifiable  revolution,  but  still  it  is  revolution. 

What,  in  the  meantime,  is  the  responsibility  and  true  posi- 
tion of  the  Executive?  He  is  bound  by  solemn  oath,  before 
God  and  the  country,  "to  take  care  that  the  laws  be  faithfully 
executed,"  and  from  this  obligation  he  can  not  be  absolved  by 
any  human  power.  But  what  if  the  performance  of  this  duty, 
in  whole  or  in  part,  has  been  rendered  impracticable  by  events 
over  which  he  could  have  exercised  no  control?  Such  at  the 
present  moment  is  the  case  throughout  the  State  of  South 
Carolina  so  far  as  the  laws  of  the  United  States  to  secure  the 
administration  of  justice  by  means  of  the  Federal  judiciary 
are  concerned.  All  the  Federal  officers  within  its  limits  through 
whose  agency  alone  these  laws  can  be  carried  into  execution 
have  already  resigned.  We  no  longer  have  a  district  judge,  a 
district  attorney,  or  a  marshal  in  South  Carolina.  In  fact,  the 
whole  machinery  of  the  Federal  Government  necessary  for  the 
distribution  of  remedial  justice  among  the  people  has  been 
demolished,  and  it  would  be  difficult,  if  not  impossible,  to 
replace  it. 

The  only  acts  of  Congress  on  the  statute  book  bearing  upon 
this  subject  are  those  of  February  28,  1795,  and  March  3,  1807. 
These  authorize  the  President,  after  he  shall  have  ascertained 
that  the  marshal,  with  his  posse  comilatus,  is  unable  to  execute 
civil  or  criminal  process  in  any  particular  case,  to  call  forth  the 
militia  and  employ  the  Army  and  Navy  to  aid  him  in  perform- 
ing this  service,  having  first  by  proclamation  commanded  the 
insurgents  "to  disperse  and  retire  peaceably  to  their  respective 
abodes  within  a  limited  time."  This  duty  can  not  by  possi- 
bility be  performed  in  a  State  where  no  judicial  authority 
exists  to  issue  process,  and  where  there  is  no  marshal  to  execute 


458    SLAVERY  AND  THE  CONSTITUTION 

it,  and  where,  even  if  there  were  such  an  officer,  the  entire 
population  would  constitute  one  solid  combination  to  resist 

him. 

The  bare  enumeration  of  these  provisions  proves  how  inade- 
quate they  are  without  further  legislation  to  overcome  a  united 
opposition  in  a  single  State,  not  to  speak  of  other  States  who 
may  place  themselves  in  a  similar  attitude.  Congress  alone 
has  power  to  decide  whether  the  present  laws  can  or  can  not 
be  amended  so  as  to  carry  out  more  effectually  the  objects  of 
the  Constitution. 

The  same  insuperable  obstacles  do  not  lie  in  the  way  of  exe- 
cuting the  laws  for  the  collection  of  the  custom.s.  The  revenue 
still  continues  to  be  collected  as  heretofore  at  the  custom- 
house in  Charleston,  and  should  the  collector  unfortunately 
resign  a  successor  may  be  appointed  to  perform  this  duty. 

Then,  in  regard  to  the  property  of  the  United  States  in  South 
Carolina.  This  has  been  purchased  for  a  fair  equivalent,  "by 
the  consent  of  the  legislature  of  the  State,"  "for  the  erection  of 
forts,  magazines,  arsenals,"  etc.,  and  over  these  the  authority 
"to  exercise  exclusive  legislation"  has  been  expressly  granted 
by  the  Constitution  to  Congress.  It  is  not  believed  that  any 
attem.pt  will  be  made  to  expel  the  United  States  from  this 
property  by  force;  but  if  in  this  I  should  prove  to  be  mistaken, 
the  officer  in  command  of  the  forts  has  received  orders  to  act 
strictly  on  the  defensive.  In  such  a  contingency  the  responsi- 
bility for  consequences  would  rightfully  rest  upon  the  heads 
of  the  assailants. 

Apart  from  the  execution  of  the  laws,  so  far  as  this  may  be 
practicable,  the  Executive  has  no  authority  to  decide  what 
shall  be  the  relations  between  the  Federal  Government  and 
South  Carolina.  ...  It  is  therefore  my  duty  to  submit  to 
Congress  the  whole  question  in  all  its  bearings.  .  .  . 

The  question  fairly  stated  is.  Has  the  Constitution  dele- 
gated to  Congress  the  power  to  coerce  a  State  into  submission 
which  is  attempting  to  withdraw  or  has  actually  withdrawn 
from  the  Confederacy?  If  answered  in  the  affirmative,  it  must 
be  on  the  principle  that  the  power  has  been  conferred  upon 


SECESSION  AND  COERCION  459 

Congress  to  declare  and  to  make  war  against  a  State.  After 
much  serious  reflection  I  have  arrived  at  the  conclusion  that 
no  such  power  has  been  delegated  to  Congress  or  to  any  other 
department  of  the  Federal  Government.  .  .  , 

Without  descending  to  particulars,  it  may  be  safely  asserted 
that  the  power  to  make  war  against  a  State  is  at  variance  with 
the  whole  spirit  and  intent  of  the  Constitution.  .  .  . 

The  fact  is  that  our  Union  rests  upon  public  opinion,  and 
can  never  be  cemented  by  the  blood  of  its  citizens  shed  in 
civil  war.  If  it  can  not  live  in  the  affections  of  the  people,  it 
must  one  day  perish.  Congress  possesses  many  means  of  pre- 
serving it  by  conciliation,  but  the  sword  was  not  placed  in  their 
hand  to  preserve  it  by  force.  ... 

145.  South  Carolina  Declaration  of  Causes} 

...  In  1787,  Deputies  v/ere  appointed  by  the  States  to 
revise  the  articles  of  Confederation;  and  on  17th  September, 
1787,  these  Deputies  recommended,  for  the  adoption  of  the 
States,  the  Articles  of  Union,  known  as  the  Constitution  of  the 
United  States. 

The  parties  to  whom  this  constitution  was  submitted  were 
the  several  sovereign  States;  they  were  to  agree  or  disagree, 
and  when  nine  of  them  agreed,  the  compact  was  to  take  effect 
among  those  concurring;  and  the  General  Government,  as 
the  common  agent,  was  then  to  be  invested  with  their  author- 
ity  

On  the  23d  May,  1788,  South  Carolina,  by  a  Convention  of 
her  people,  passed  an  ordinance  assenting  to  this  Constitution, 
and  afterwards  altered  her  own  Constitution  to  conform  her- 
self to  the  obligations  she  had  undertaken. 

Thus  was  established,  by  compact  between  the  States,  a 
Government  with  defined  objects  and  powers,  limited  to  the 
express  words  of  the  grant.  This  limitation  left  the  whole 
remaining  mass  of  power  subject  to  the  clause  reserving  it  to 
the  States  or  the  people,  and  rendered  unnecessary  any  specifi- 
cation of  reserved  rights.  We  hold  that  the  Government  thus 
^  Moore,  Rebellion  Record,  i,  3-4,  passim.  December  24,  i860. 


46o    SLAVERY  AND  THE  CONSTITUTION 

established  is  subject  to  the  two  great  principles  ^  asserted  in 
the  Declaration  of  Independence;  and  we  hold  further,  that 
the  mode  of  its  formation  subjects  it  to  a  third  fundamental 
principle,  namely,  the  law  of  compact.  We  maintain  that  in 
every  compact  between  two  or  more  parties  the  obligation  is 
mutual ;  that  the  failure  of  one  of  the  contracting  parties  to 
perform  a  material  part  of  the  agreement,  entirely  releases  the 
obligation  of  the  other;  and  that,  where  no  arbiter  is  pro- 
vided, each  party  is  remitted  to  his  own  judgment  to  determine 
the  fact  of  failure,  with  all  its  consequences. 

In  the  present  case,  that  fact  is  established  with  certainty. 
We  assert  that  fourteen  of  the  States  have  deliberately  refused 
for  years  past  to  fulfil  their  constitutional  obligations,  and  we 
refer  to  their  own  statutes  fcr  the  proof. 

The  Constitution  of  the  United  States,  in  its  fourth  Article, 
provides  as  follows:  .  .  .  [See  Section  2;  Clause  3.] 

This  stipulation  was  so  material  to  the  compact  that  without 
it  that  compact  would  not  have  been  made.  The  greater 
number  of  the  contracting  parties  held  slaves,  and  they  had 
previously  evinced  their  estimate  of  the  value  of  such  a  stipu- 
lation by  making  it  a  condition  in  the  Ordinance  for  the  govern- 
ment of  the  territory  ceded  by  Virginia,  which  obligations,  and 
the  laws  of  the  General  Government,  have  ceased  to  effect  the 
objects  of  the  Constitution.  The  States  of  Maine,  New  Hamp- 
shire, Vermont,  Massachusetts,  Connecticut,  Rhode  Island, 
New  York,  Pennsylvania,  Illinois,  Indiana,  Michigan,  Wis- 
consin, and  Iowa,  have  enacted  laws  which  either  nullify  the 
acts  of  Congress,  or  render  useless  any  attempt  to  execute  them.. 
In  many  of  these  States  the  fugitive  is  discharged  from  the 
service  of  labor  claimed,  and  in  none  of  them  has  the  State 
Government  complied  with  the  stipulation  made  in  the  Con- 
stitution. The  State  of  New  Jersey,  at  an  early  day,  passed  a 
law  in  conformity  with  her  constitutional  obligation;  but  the 
current  of  Anti-Slavery  feeling  has  led  her  more  recently  to 

"The  right  of  a  State  to  govern  itself;  and  the  right  of  a  people  to 
abolish  a  Government  when  it  becomes  destructive  of  the  ends  for  which 
it  was  instituted." 


SECESSION  AND  COERCION  461 

enact  laws  which  render  inoperative  the  remedies  provided  by 
her  own  laws  and  by  the  laws  of  Congress.  In  the  State  of 
New  York  even  the  right  of  transit  for  a  slave  has  been  denied 
by  her  tribunals;  and  the  States  of  Ohio  and  Iowa  have  refused 
to  surrender  to  justice  fugitives  charged  with  murder,  and  with 
inciting  servile  insurrection  in  the  State  of  Virginia.  Thus  the 
constitutional  compact  has  been  deliberately  broken  and  dis- 
regarded by  the  non-slaveholding  States;  and  the  consequence 
follows  that  South  Carolina  is  released  from  her  obligation.  .  .  . 

We  affirm  that  these  ends  for  which  this  Government  was 
instituted  have  been  defeated,  and  the  Government  itself  has 
been  made  destructive  of  them  by  the  action  of  the  non- 
slaveholding  States.  Those  States  have  assumed  the  right  of 
deciding  upon  the  propriety  of  our  domestic  institutions;  and 
have  denied  the  rights  of  property  estabhshed  in  fifteen  of 
the  States  and  recognized  by  the  Constitution;  they  have 
denounced  as  sinful  the  institution  of  Slavery;  they  have  per- 
mitted the  open  establishment  among  them  of  societies,  whose 
avowed  object  is  to  disturb  the  peace  of  and  eloin  the  prop- 
erty of  the  citizens  of  other  States.  They  have  encouraged 
and  assisted  thousands  of  our  slaves  to  leave  their  homes; 
and  those  who  remain,  have  been  incited  by  emissaries,  books, 
dnd  pictures,  to  servile  insurrection. 

For  twenty-five  years  this  agitation  has  been  steadily  in- 
creasing, until  it  has  now  secured  to  its  aid  the  power  of  the 
comm.on  Government.  Observing  the  forms  of  the  Constitu- 
tion, a  sectional  party  has  found  within  that  article  establishing 
the  Executive  Department,  the  means  of  subverting  the  Con- 
stitution itself.  A  geographical  line  has  been  drawn  across  the 
Union,  and  all  the  States  north  of  that  line  have  united  in  the 
election  of  a  man  to  the  high  office  of  President  of  the  United 
States  whose  opinions  and  purposes  are  hostile  to  Slavery.  He 
is  to  be  intrusted  with  the  administration  of  the  common 
Government,  because  he  has  declared  that  that  "  Government 
cannot  endure  permanently  half  slave,  half  free,"  and  that 
the  public  mind  must  rest  in  the  belief  that  Slavery  is  in  the 
course  of  ultimate  extinction. 


462    SLAVERY  AND  THE  CONSTITUTION 

This  sectional  combination  for  the  subversion  of  the  Con- 
stitution has  been  aided,  in  some  of  the  States,  by  elevating  to 
citizenship  persons  who,  by  the  supreme  law  of  the  land,  are 
incapable  of  becoming  citizens;  and  their  votes  have  been  used 
to  inaugurate  a  new  policy,  hostile  to  the  South,  and  destruc- 
tive of  its  peace  and  safety. 

On  the  4th  of  March  next  this  party  will  take  possession  of 
the  Government.  It  has  announced  that  the  South  shall  be 
excluded  from  the  common  territory,  that  the  Judicial  tribunal 
shall  be  made  sectional,  and  that  a  war  must  be  waged  against 
Slavery  until  it  shall  cease  throughout  the  United  States. 

The  guarantees  of  the  Constitution  will  then  no  longer  exist; 
the  equal  rights  of  the  States  will  be  lost.  The  Slaveholding 
States  will  no  longer  have  the  power  of  self-government,  or  self- 
protection,  and  the  Federal  Government  will  have  become  their 
enemy.  .  .  . 

146.  Dissolution  of  the  Partnership} 

The  sites  of  forts,  arsenals,  navy-yards,  and  other  public 
property  of  the  Federal  Government  were  ceded  by  the  States, 
within  whose  limits  they  were,  subject  to  the  condition,  either 
expressed  or  implied,  that  they  should  be  used  solely  and  ex- 
clusively for  the  purposes  for  which  they  were  granted.  The 
ultimate  ownership  of  the  soil,  or  eminent  domain,  remains 
with  the  people  of  the  State  in  which  it  lies,  by  virtue  of  their 
sovereignty.  .  .  , 

A  State  withdrawing  from  the  Union  would  necessarily  as- 
sume the  control  theretofore  exercised  by  the  General  Govern- 
ment over  all  public  defenses  and  other  public  property  within 
her  limits.  It  would,  however,  be  but  fair  and  proper  that  ade- 
quate compensation  should  be  made  to  the  other  members  of 
the  partnership,  or  their  common  agent,  for  the  value  of  the 
works  and  for  any  other  advantage  obtained  by  the  one  party, 
or  loss  incurred  by  the  other.  Such  equitable  settlement,  the 
seceding  States  of  the  South,  without  exception,  as  I  believe, 
were  desirous  to  make,  and  prompt  to  propose  to  the  Federal 
authorities.  .  .  . 

^  Davis,  Rise  and  Fall  of  the  Confederate  Government,  i,  209-14  passim. 


SECESSION  AND  COERCION  463 

Immediately  after  the  secession  of  the  State,  the  Convention 
of  South  Carolina  deputed  three  distinguished  citizens  of  that 
State  —  Messrs.  Robert  W.  Barnwell,  James  H.  Adams,  and 
James  L.  Orr —  to  proceed  to  Washington,  "to  treat  with  the 
Government  of  the  United  States  for  the  delivery  of  the  forts, 
magazines,  lighthouses,  and  other  real  estate,  with  their  appur- 
tenances, within  the  limJts  of  South  Carolina,  and  also  for  an 
apportionment  of  the  public  debt,  and  for  a  division  of  all  other 
property  held  by  the  Government  of  the  United  States,  as 
agent  of  the  confederated  States,  of  which  South  Carohna  was 
recently  a  member;  and  generally  to  negotiate  as  to  all  other 
measures  and  arrangements  proper  to  be  m.ade  and  adopted  in 
the  existing  relation  of  the  parties,  and  for  the  continuance  of 
peace  and  am.ity  between  this  Commonwealth  and  the  Govern- 
ment at  Washington." 

The  Commissioners,  in  the  discharge  of  the  duty  intrusted  to 
them,  arrived  in  Washington  on  the  26th  of  December.  Before 
they  could  communicate  with  the  President,  however  —  in- 
deed, on  the  morning  after  their  arrival —  they  were  startled, 
and  the  whole  country  electrified,  by  the  news  that,  during  the 
previous  night,  Major  Anderson  had  "secretly  dismantled  Fort 
Moultrie,"  spiked  his  guns,  burned  his  gun-carriages,  and  re- 
moved his  command  to  Fort  Sumter,  which  occupied  a  more 
commanding  position  in  the  harbor.  This  movement  changed 
the  whole  aspect  of  affairs.  It  was  considered  by  the  Govern- 
ment and  people  of  South  Carolina  as  a  violation  of  the  im.plied 
pledge  of  a  maintenance  of  the  status  quo;  the  remaining  forts 
and  other  public  property  were  at  once  taken  possession  of  by 
the  State;  and  the  condition  of  public  feeling  became  greatly 
exacerbated.  An  interview  between  the  President  and  the 
Commissioners  was  followed  by  a  sharp  correspondence,  which 
was  terminated  on  the  ist  of  January,  1861,  by  the  return  to 
the  Commissioners  of  their  final  communication,  with  an  en- 
dorsement stating  that  it  was  of  such  a  character  that  the 
President  declined  to  receive  it.  The  negotiations  were  thus 
abruptly  broken  off. 


PART  EIGHT.    THE  CONSTITUTION  IN 
THE  CIVIL  WAR 

CHAPTER  L 

THE    NATURE    OF   THE   WAR 

If  the  purposes  of  the  new  President  were  different  from  those  of  the 
outgoing  executive,  they  were  not  disclosed  in  the  inaugural  address. 
There  was,  however,  one  significant  omission.  Nothing  was  said  about 
coercion.  It  should  be  noted  that  Congress  was  not  in  session  when  hos- 
tilities broke  out.  The  policy  of  the  new  administration,  therefore,  was 
developed  under  conditions  which  necessitated  a  concentration  of  all  the 
powers  of  government  in  the  hands  of  the  Chief  Executive.  When  Con- 
gress met  in  special  session  on  July  4,  it  promptly  supplied  the  necessary 
legal  authorization  for  the  President's  acts.  On  July  13,  Congress  recog- 
nized a  state  of  war  as  existing;  and  on  July  22,  disclaiming  any  purpose 
of  conquest  or  subjugation,  it  declared  that  its  sole  object  in  waging  war 
was  to  maintain  the  Constitution  and  to  preserve  the  Union. 

147.  President  Lincoln's  Inaugural  Address} 

I  hold  that  in  contemplation  of  universal  law  and  of  the  Con- 
stitution the  Union  of  these  States  is  perpetual.  Perpetuity  is 
implied,  if  not  expressed,  in  the  fundamental  law  of  all  national 
governments.  It  is  safe  to  assert  that  no  government  proper 
ever  had  a  provision  in  its  organic  law  for  its  own  termination. 
Continue  to  execute  all  the  express  provisions  of  our  National 
Constitution,  and  the  Union  will  endure  forever,  it  being  im- 
possible to  destroy  it  except  by  some  action  not  provided  for  in 
the  instrument  itself. 

Again :  If  the  United  States  be  not  a  governm.ent  proper,  but 
an  association  of  States  in  the  nature  of  contract  merely,  can  it, 
as  a  contract,  be  peaceably  unmade  by  less  than  all  the  parties 
who  made  it?  One  party  to  a  contract  may  violate  it  —  break 
it,  so  to  speak  —  but  does  it  not  require  all  to  lawfully  rescind 
it? 

^  March  4,  1861.  Richardson,  Messages  and  Papers  of  the  Presidents, vi, 
7-8. 


THE  NATURE  OF  THE  WAR  465 

Descending  from  these  general  principles,  we  find  the  pro- 
position that  in  legal  contemplation  the  Union  is  perpetual 
confirmed  by  the  history  of  the  Union  itself.  The  Union  is 
much  older  than  the  Constitution.  It  was  formed,  in  fact,  by 
the  Articles  of  Association  in  1774.  It  was  matured  and  con- 
tinued by  the  Declaration  of  Independence  in  1776.  It  was 
further  matured,  and  the  faith  of  all  the  then  thirteen  States 
expressly  plighted  and  engaged  that  it  should  be  perpetual,  by 
the  Articles  of  Confederation  in  1778.  And  finally,  in  1787,  one 
of  the  declared  objects  for  ordaining  and  establishing  the  Con- 
stitution was  ^' to  form  a  more  perfect  Unions 

But  if  destruction  of  the  Union  by  one  or  by  a  part  only  of 
the  States  be  lawfully  possible,  the  Union  is  less  perfect  than 
before  the  Constitution,  having  lost  the  vital  element  of  per- 
petuity. 

It  follows  from  these  views  that  no  State  upon  its  own  mere 
motion  can  lawfully  get  out  of  the  Union,  that  resolves  and 
ordinances  to  that  effect  are  legally  void,  and  that  acts  of  vio- 
lence within  any  State  or  States  against  the  authority  of  the 
United  States  are  insurrectionary  or  revolutionary,  according 
to  circumstances. 

I  therefore  consider  that  in  view  of  the  Constitution  and  the 
laws  the  Union  is  unbroken,  and  to  the  extent  of  my  ability  I 
shall  take  care,  as  the  Constitution  itself  expressly  enjoins  upon 
me,  that  the  laws  of  the  Union  be  faithfully  executed  in  all  the 
States.  Doing  this  I  deem  to  be  only  a  simple  duty  on  my  part, 
and  I  shall  perform  it  so  far  as  practicable  unless  my  rightful 
masters,  the  American  people,  shall  withhold  the  requisite 
means  or  in  some  authoritative  manner  direct  the  contrary.  I 
trust  this  will  not  be  regarded  as  a  menace,  but  only  as  the 
declared  purpose  of  the  Union  that  it  will  constitutionally 
defend  and  maintain  itself. 

In  doing  this  there  needs  to  be  no  bloodshed  or  violence,  and 
there  shall  be  none  unless  it  be  forced  upon  the  national  au- 
thority. The  power  confided  to  me  will  be  used  to  hold,  occupy, 
and  possess  the  property  and  places  belonging  to  the  Govern- 
ment and  to  collect  the  duties  and  imposts;  but  beyond  what 


466    CONSTITUTION  IN  THE  CIVIL  WAR 

may  be  necessary  for  these  objects,  there  will  be  no  invasion, 
no  using  of  force  against  or  among  the  people  anywhere.  Where 
hostility  to  the  United  States  in  any  interior  locality  shall  be  so 
great  and  universal  as  to  prevent  competent  resident  citizens 
from  holding  the  Federal  ofiSces,  there  will  be  no  attempt  to 
force  obnoxious  strangers  among  the  people  for  that  object. 
While  the  strict  legal  right  may  exist  in  the  Government  to 
enforce  the  exercise  of  these  offices,  the  attempt  to  do  so  would 
be  so  irritating  and  so  nearly  impracticable  withal  that  I  deem 
it  better  to  forego  for  the  time  the  uses  of  such  offices. 

The  mails,  unless  repelled,  will  continue  to  be  furnished  in  all 
parts  of  the  Union.  So  far  as  possible  the  people  everywhere 
shall  have  that  sense  of  perfect  security  which  is  most  favorable 
to  calm  thought  and  reflection.  The  course  here  indicated  will 
be  followed  unless  current  events  and  experience  shall  show  a 
modification  or  change  to  be  proper,  and  in  every  case  and  exi- 
gency my  best  discretion  will  be  exercised,  according  to  circum- 
stances actually  existing  and  with  a  view  and  a  hope  of  a  peace- 
ful solution  of  the  national  troubles  and  the  restoration  of 
fraternal  sympathies  and  affections.  .  .  . 

148.  The  Call  to  Arms} 

Whereas  the  laws  of  the  United  States  have  been  for  some 
time  past  and  now  are  opposed  and  the  execution  thereof  ob- 
structed in  the  States  of  South  Carolina,  Georgia,  Alabama, 
Florida,  Mississippi,  Louisiana,  and  Texas  by  combinations  too 
powerful  to  be  suppressed  by  the  ordinary  course  of  judicial 
proceedings  or  by  the  powers  vested  in  the  marshals  by  law : 

Now,  therefore,  I,  Abraham  Lincoln,  President  of  the 
United  States,  in  virtue  of  the  power  in  me  vested  by  the  Con- 
stitution and  the  laws,  have  thought  fit  to  call  forth,  and  hereby 
do  call  forth,  the  militia  of  the  several  States  of  the  Union  to 
the  aggregate  number  of  75,000,  in  order  to  suppress  said  com- 
binations and  to  cause  the  laws  to  be  duly  executed.  ... 

*  April  15,  1 86 1.  Richardson,  Messages  and  Papers  of  the  Presidents, 
VI,  13. 


THE  NATURE  OF  THE  WAR  467 

149.  Proclamation  of  Blockade} 

Whereas  an  insurrection  against  the  Government  of  the 
United  States  has  broken  out  in  the  States  of  South  Carolina, 
Georgia,  Alabama,  Florida,  Mississippi,  Louisiana,  and  Texas, 
and  the  laws  of  the  United  States  for  the  collection  of  the  reve- 
nue can  not  be  effectually  executed  therein  conformably  to  that 
provision  of  the  Constitution  which  requires  duties  to  be  uni- 
form throughout  the  United  States;  and 

Whereas  a  combination  of  persons  engaged  in  such  insurrec- 
tion have  threatened  to  grant  pretended  letters  of  marque  to 
authorize  the  bearers  thereof  to  commit  assaults  on  the  lives, 
vessels,  and  property  of  good  citizens  of  the  country  lawfully 
engaged  in  commerce  on  the  high  seas  and  in  waters  of  the 
United  States;  and 

Whereas  an  Executive  proclamation  has  been  already  issued 
requiring  the  persons  engaged  in  these  disorderly  proceedings 
to  desist  therefrom,  calling  out  a  militia  force  for  the  purpose  of 
repressing  the  same,  and  convening  Congress  in  extraordinary 
session  to  deliberate  and  determine  thereon: 

Now,  therefore,  I,  Abraham  Lincoln,  President  of  the  United 
States,  with  a  view  to  the  same  purposes  before  mentioned  and 
to  the  protection  of  the  public  peace  and  the  lives  and  property 
of  quiet  and  orderly  citizens  pursuing  their  lawful  occupations, 
until  Congress  shall  have  assembled  and  deliberated  on  the  said 
unlawful  proceedings  or  until  the  same  shall  have  ceased,  have 
further  deemed  it  advisable  to  set  on  foot  a  blockade  of  the 
ports  within  the  States  aforesaid,  in  pursuance  of  the  laws  of 
the  United  States  and  of  the  law  of  nations  in  such  case 
provided.  .  .  . 

And  I  hereby  proclaim  and  declare  that  if  any  person,  under 
the  pretended  authority  of  the  said  States  or  under  any  other 
pretense,  shall  molest  a  vessel  of  the  United  States  or  the  per- 
sons or  cargo  on  board  of  her,  such  person  will  be  held  amenable 
to  the  lavv's  of  the  United  States  for  the  prevention  and  punish- 
ment of  piracy,  .  .  . 

*  April  ig,  1861.  Richardson,  Messages  and  Papers  of  the  Presidents^ 
VI,  14. 


468    CONSTITUTION  IN  THE  CIVIL  WAR 

150.  President  Lincoln's  Message  of  July  4,  i86i} 

Recurring  to  the  action  of  the  Government,  it  may  be  stated 
that  at  first  a  call  was  made  for  75,000  militia,  and  rapidly 
following  this  a  proclamation  was  issued  for  closing  the  ports 
of  the  insurrectionary  districts  by  proceedings  in  the  nature 
of  blockade.  So  far  all  was  beHeved  to  be  strictly  legal.  At  this 
point  the  insurrectionists  announced  their  purpose  to  enter 
upon  the  practice  of  privateering. 

Other  calls  were  made  for  volunteers  to  serve  three  years 
unless  sooner  discharged,  and  also  for  large  additions  to  the 
Regular  Army  and  Navy.  These  measures,  whether  strictly 
legal  or  not,  were  ventured  upon  under  what  appeared  to  be  a 
popular  demand  and  a  public  necessity,  trusting  then,  as  now, 
that  Congress  would  readily  ratify  them.  It  is  believed  that 
nothing  has  been  done  beyond  the  constitutional  competency 
of  Congress. 

Soon  after  the  first  call  for  militia  it  M'as  considered  a  duty  to 
authorize  the  Commanding  General  in  proper  cases,  according 
to  his  discretion,  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus,  or,  in  other  words,  to  arrest  and  detain  without  resort 
to  the  ordinary  processes  and  forms  of  law  such  individuals 
as  he  might  deem  dangerous  to  the  public  safety.  This  author- 
ity has  purposely  been  exercised  but  very  sparingly.   Never- 
theless, the  legality  and  propriety  of  what  has  been  done  under 
it  are  questioned,  and  the  attention  of  the  country  has  been 
called  to  the  proposition  that  one  who  is  sworn  to  "take  care 
that  the  laws  be  faithfully  executed  "  should  not  hunself  violate 
them.  Of  course  some  consideration  was  gi\'en  to  the  questions 
of  power  and  propriety  before  this  matter  was  acted  upon.  The 
whole  of  the  laws  which  were  required  to  be  faithfully  executed 
were  being  resisted  and  failing  of  execution  in  nearly  one-third 
of  the  States.  Must  they  be  allowed  to  finally  fail  of  execution, 
even  had  it  been  perfectly  clear  that  by  the  use  of  the  means 
necessary  to  their  execution  some  single  law,  made  in  such 
extreme  tenderness  of  the  citizen's  liberty  that  practically  it 
^  Richardson,  Messages  and  Papers  oj  the  Presidents,  vi,  24-28  passim. 


THE  NATURE  OF  THE  WAR  469 

relieves  more  of  the  guilty  than  of  the  innocent,  should  to  a 
very  limited  extent  be  violated?  To  state  the  question  more 
directly,  Are  all  the  laws  hut  one  to  go  unexecuted,  and  the 
Government  itself  go  to  pieces  lest  that  one  be  violated?  Even 
in  such  a  case,  would  not  the  official  oath  be  broken  if  the  Gov- 
ernment should  be  overthrown  when  it  was  believed  that  dis- 
regarding the  single  law  would  tend  to  preserve  it?  But  it  was 
not  believed  that  this  question  was  presented.  It  was  not 
believed  that  any  law  was  violated.  The  provision  of  the  Con- 
stitution that  "the  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended  unless  when,  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it"  is  equivalent  to  a  provision 
—  is  a  provision —  that  such  privilege  m.ay  be  suspended  when, 
in  cases  of  rebellion  or  invasion,  the  public  safety  does  require 
it.  It  was  decided  that  we  have  a  case  of  rebellion  and  that  the 
public  safety  does  require  the  qualified  suspension  of  the  privi- 
lege of  the  writ  which  was  authorized  to  be  made.  Now  it  is 
insisted  that  Congress,  and  not  the  Executive,  is  vested  with 
this  power;  but  the  Constitution  itself  is  silent  as  to  which  or 
who  is  to  exercise  the  power ;  and  as  the  provision  was  plainly 
m.ade  for  a  dangerous  emergency,  it  can  not  be  believed  the 
framers  of  the  instrument  intended  that  in  every  case  the 
danger  should  run  its  course  until  Congress  could  be  called 
together,  the  very  assembling  of  which  might  be  prevented,  as 
was  intended  in  this  case,  by  the  rebeUion,  .  .  . 

Our  States  have  neither  more  nor  less  power  than  that 
reserved  to  them  in  the  Union  by  the  Constitution,  no  one  of 
them  ever  having  been  a  State  out  of  the  Union.  The  original 
ones  passed  into  the  Union  even  before  they  cast  off  their 
British  colonial  dependence,  and  the  new  ones  each  came  into 
the  Union  directly  from  a  condition  of  dependence,  excepting 
Texas;  and  even  Texas  in  its  temporary  independence,  was 
never  designated  a  State.  The  new  ones  only  took  the  designa- 
tion of  States  on  coming  into  the  Union,  while  that  name  was 
first  adopted  for  the  old  ones  in  and  by  the  Declaration  of 
Independence.  Therein  the  "United  Colonies"  were  declared 
to  be  "free  and  independent  States; "  but  even  then  the  object 


470    CONSTITUTION  IN  THE  CIVIL  WAR 

plainly  was  not  to  declare  their  independence  of  one  another  or 
of  the  Union,  but  directly  the  contrary,  as  their  mutual  pledge 
and  their  mutual  action  before,  at  the  time,  and  afterw^ards 
abundantly  show.  The  express  pHghting  of  faith  by  each  and 
all  of  the  original  thirteen  in  the  Articles  of  Confederation,  two 
years  later,  that  the  Union  shall  be  perpetual  is  most  conclusive. 
Having  never  been  States,  either  in  substance  or  in  name, 
outside  of  the  Union,  whence  this  magical  omnipotence  of 
"State  rights,"  asserting  a  claim  of  power  to  lawfully  destroy 
the  Union  itself?  Much  is  said  about  the  "sovereignty"  of  the 
States,  but  the  word  even  is  not  in  the  National  Constitution, 
nor,  as  is  believed,  in  any  of  the  State  constitutions.  What  is  a 
"sovereignty"  in  the  political  sense  of  the  term?  Would  it  be 
far  wrong  to  define  it  "a  political  community  without  a  pohtical 
superior"?  Tested  by  this,  no  one  of  our  States,  except  Texas, 
ever  was  a  sovereignty;  and  even  Texas  gave  up  the  character 
on  coming  into  the  Union,  by  which  act  she  acknowledged  the 
Constitution  of  the  United  States  and  the  laws  and  treaties  of 
the  United  States  made  in  pursuance  of  the  Constitution  to 
be  for  her  the  supreme  law  of  the  land.  The  States  have  their 
status  in  the  Union,  and  they  have  no  other  legal  status.    If 
they  break  from  this,  they  can  only  do  so  against  law  and  by 
revolution.   The  Union,  and  not  themselves  separately,  pro- 
cured their  independence  and  their  liberty.    By  conquest  or 
purchase  the  Union  gave  each  of  them  whatever  of  independ- 
ence and  liberty  it  has.   The  Union  is  older  than  any  of  the 
States,  and,  in  fact,  it  created   them  as  States.     Originally 
some  dependent  colonies  made  the  Union,  and  in  turn  the 
Union  threw  off  their  old  dependence  for  them  and  made  them 
States,  such  as  they  are.   Not  one  of  them  ever  had  a  State 
constitution  independent  of  the  Union.  Of  course  it  is  not  for- 
gotten that  all  the  new  States  framed  their  constitutions  before 
they  entered  the  Union,  nevertheless  dependent  upon  and  pre- 
paratory to  coming  into  the  Union. 

Unquestionably  the  States  had  the  powers  and  rights  re- 
served to  them  in  and  by  the  National  Constitution ;  but  among 
these  surely  are  not  included  all  conceivable  powers,  however 


THE  NATURE  OF  THE  \A^AR  471 

mischievous  or  destructive,  but  at  most  such  only  as  were 
known  in  the  world  at  the  time  as  governmental  powers;  and 
certainly  a  power  to  destroy  the  Government  itself  had  never 
been  known  as  a  governmental  —  as  a  merely  administrative 
power,  ... 

151.  Proclamation  of  War} 

Whereas  on  the  15th  day  of  April,  1861,  the  President  of  the 
United  States,  in  view  of  an  insurrection  against  the  laws,  Con- 
stitution, and  Government  of  the  United  States  ...  did  call 
forth  the  militia  to  suppress  said  insurrection  and  to  cause  the 
laws  of  the  Union  to  be  duly  executed,  and  the  insurgents  have 
failed  to  disperse  by  the  time  directed  by  the  President; 
and  .  .  . 

Whereas  the  insurgents  in  all  the  said  States  claim  to  act 
under  the  authority  thereof,  and  such  claim  is  not  disclaimed 
or  repudiated  by  the  persons  exercising  the  functions  of  govern- 
ment in  such  State  or  States  or  in  the  part  or  parts  thereof  in 
which  such  combinations  exist,  nor  has  such  insurrection  been 
suppressed  by  said  States: 

Now,  therefore,  I,  Abraham  Lincoln,  President  of  the  United 
States,  in  pursuance  of  an  act  of  Congress  approved  July  13, 
1 86 1,  do  hereby  declare  that  the  inhabitants  of  the  said  States 
of  Georgia,  South  Carohna,  Virginia,  North  Carolina,  Tennes- 
see, Alabama,  Louisiana,  Texas,  Arkansas,  Mississippi,  and 
Florida  (except  the  inhabitants  of  that  part  of  the  State  of 
Virginia  lying  west  of  the  Alleghany  Mountains  and  of  such 
other  parts  of  that  State  and  the  other  States  hereinbefore 
named  as  may  maintain  a  loyal  adhesion  to  the  Union  and  the 
Constitution  or  may  be  from  time  to  time  occupied  and  con- 
trolled by  forces  of  the  United  States  engaged  in  the  dispersion 
of  said  insurgents)  are  in  a  state  of  insurrection  against  the 
United  States,  and  that  all  commercial  intercourse  between  the 
same  and  the  inhabitants  thereof,  with  the  exceptions  afore- 
said, and  the  citizens  of  other  States  and  other  parts  of  the 

^  August  16,  1861.  Richardson,  Messages  and  Papers  of  (he  Presidents^ 
VI,  37-38. 


472    CONSTITUTION  IN  THE  CIVIL  WAR 

United  States  is  unlawful,  and  will  remain  unlawful  until  such 
insurrection  shall  cease  or  has  been  suppressed;  .  .  . 

152.  The  Prize  Cases} 

Let  us  inquire  whether,  at  the  time  this  blockade  was  insti- 
tuted, a  state  of  war  existed  which  would  justify  a  resort  to 
these  means  of  subduing  the  hostile  force.  .  .  . 

Insurrection  against  a  government  may  or  may  not  cuhnin- 
ate  in  an  organized  rebellion,  but  a  civil  war  always  begins  by 
insurrection  against  the  lawful  authority  of  the  Government. 
A  civil  war  is  never  solemnly  declared ;  it  becomes  such  by  its 
accidents, —  the  number,  power,  and  organization  of  the  per- 
sons who  originate  and  carry  it  on.  When  the  party  in  rebellion 
occupy  and  hold  in  a  hostile  manner  a  certain  portion  of  ter- 
ritory; have  declared  their  independence;  have  cast  off  their 
allegiance ;  have  organized  armies ;  have  commenced  hostilities 
against  their  former  sovereign,  the  world  acknowledges  them 
as  belligerents,  and  the  contest  a  war.  They  claim  to  be  in 
arms  to  establish  their  liberty  and  independence,  in  order  to 
become  a  sovereign  State,  while  the  sovereign  party  treats  them 
as  insurgents  and  rebels  who  owe  allegiance,  and  who  should 
be  punished  with  death  for  their  treason. 

The  laws  of  war,  as  established  among  nations,  have  their 
foundation  in  reason,  and  all  tend  to  mitigate  the  cruelties  and 
misery  produced  by  the  scourge  of  war.  Hence  the  parties  to  a 
civil  war  usually  concede  to  each  other  belligerent  rights.  They 
exchange  prisoners,  and  adopt  the  other  courtesies  and  rules 
common  to  public  or  national  wars.  .  .  . 

This  greatest  of  civil  wars  was  not  gradually  developed  by 
popular  commotion,  tumultuous  assemblies,  or  local  unorgan- 
ized insurrections.  However  long  may  have  been  its  previous 
conception,  it  nevertheless  sprung  forth  suddenly  from  the 
parent  brain,  a  Minerva  in  the  full  panoply  of  war.  The  Presi- 
dent was  bound  to  meet  it  in  the  shape  it  presented  itself, 
without  waiting  for  Congress  to  baptize  it  with  a  name;  and  no 
name  given  to  it  by  him  or  them  could  change  the  fact. 
^  Supreme  Court  of  the  United  States,  1863.   2  Black,  635. 


THE  NATURE  OF  THE   WAR         473 

It  is  not  the  less  a  civil  war,  with  belligerent  parties  in  hostile 
array,  because  it  may  be  called  an  "insurrection"  by  one  side, 
and  the  insurgents  be  considered  as  rebels  or  traitors.  It  is  not 
necessary  that  the  independence  of  the  revolted  province  or 
State  be  acknowledged  in  order  to  constitute  it  a  party  belliger- 
ent in  a  war  according  to  the  law  of  nations.  Foreign  nations 
acknowledge  it  as  war  by  a  declaration  of  neutrality.  The  con- 
dition of  neutrality  cannot  exist  unless  there  be  two  belligerent 
parties.  .  .  . 

The  law  of  nations  is  also  called  the  law  of  nature;  it  is 
founded  on  the  common  consent  as  well  as  the  common  sense 
of  the  world.  It  contains  no  such  anomalous  doctrine  as  that 
which  this  Court  are  now  for  the  first  time  desired  to  pronounce, 
to  wit:  That  insurgents  who  have  risen  in  rebellion  against 
their  sovereign,  expelled  her  courts,  established  a  revolutionary 
government,  organized  armies,  and  commenced  hostilities,  are 
not  enemies  because  they  are  traitors;  and  a  war  levied  on  the 
government  by  traitors,  in  order  to  dismember  and  destroy  it, 
is  not  a  war  because  it  is  an  "insurrection." 

Whether  the  President,  in  fulfilling  his  duties  as  Commander- 
in-chief  in  suppressing  an  insurrection,  has  met  with  such 
armed  hostile  resistance,  and  a  civil  war  of  such  alarming  pro- 
portions, as  will  compel  him  to  accord  to  them  the  character  of 
belligerents,  is  a  question  to  be  decided  by  him,  and  this  Court 
must  be  governed  by  the  decisions  and  acts  of  the  political 
department  of  the  Government  to  which  this  power  was  in- 
trusted. "He  must  determine  what  degree  of  force  the  crisis 
demands."  The  proclamation  of  blockade  is  itself  official  and 
conclusive  evidence  to  the  Court  that  a  state  of  war  existed 
which  demanded  and  authorized  a  recourse  to  such  a  measure, 
under  the  circumstances  peculiar  to  the  case.  ... 

On  this  first  question  therefore  we  are  of  the  opinion  that  the 
President  had  a  nght,  jure  belli,  to  institute  a  blockade  of  ports 
in  possession  of  the  States  in  rebellion,  which  neutrals  are 
bound  to  regard. 


CHAPTER  LI 

PRESIDENTIAL  DICTATORSHIP 

None  of  the  powers  assumed  by  the  President  immediately  after  the 
fall  of  Fort  Sumter  was  so  vigorously  denounced  as  his  order  to  General 
Scott  to  suspend  the  writ  of  habeas  corpus  at  his  discretion  along  the  mili- 
tary hne  between  Washington  and  Philadelphia.  In  pursuance  of  this 
order,  one  John  Merryman,  a  citizen  of  Maryland,  was  arrested  upon 
suspicion  of  treasonable  conduct.  His  application  to  the  Supreme  Court 
for  a  writ  of  habeas  corpus  gave  occasion  to  Chief  Justice  Taney  to  record 
a  A/igorous  dissent  from  the  doctrine  that  in  a  crisis  the  President  might 
suspend  the  privilege  of  the  writ.  The  President  not  only  disregarded  the 
protest,  but  extended  the  order  to  suspend  the  writ  along  the  line  from 
Washington  to  New  York.  In  this  course  he  was  sustained  by  the  Attor- 
ney-General, whose  opinion  may  be  regarded  as  a  reply  to  the  Chief 
Justice. 

153.   Ex  parte  John  Merryman} 

.  .  .  Thecase,  then,  is  simply  this:  A  military  officer  residing 
in  Pennsylvania  issues  an  order  to  arrest  a  citizen  of  Maryland, 
upon  vague  and  indefinite  charges,  without  any  proof,  so  far  as 
it  appears.  Under  this  order  his  house  is  entered  in  the  night; 
he  is  seized  as  a  prisoner,  and  conveyed  to  FortMcHenry,  and 
there  kept  in  close  confinement.  And  when  a  habeas  corpus  is 
served  on  the  commanding  officer,  requiring  him  to  produce  the 
prisoner  before  a  Justice  of  the  Supreme  Court,  in  order  that  he 
may  examine  into  the  legality  of  the  imprisonment,  the  answer 
of  the  officer  is  that  he  is  authorized  by  the  President  to  sus- 
pend the  writ  of  habeas  corpus  at  his  discretion,  and,  in  the  ex- 
ercise of  that  discretion,  suspends  it  in  this  case,  and  on  that 
ground  refuses  obedience  to  the  writ.  .  .  . 

The  clause  in  the  Constitution  which  authorizes  the  suspen- 
sion of  the  privilege  of  the  writ  of  habeas  corpus  is  in  the  ninth 
section  of  the  first  article. 

This  article  is  devoted  to  the  Legislative  Department  of  the 
United  States,  and  has  not  the  slightest  reference  to  the  Execu- 

^  McPherson,  Political  History  of  the  United  States  during  the  Great 
Rebellion,  155-56. 


PRESIDENTIAL  DICTATORSHIP        475 

live  Department.  It  begins  by  providing  "that  all  legislative 
powers  therein  granted  shall  be  vested  in  a  Congress  of  the 
United  States,  which  shall  consist  of  a  Senate  and  House  of 
Representatives."  And  after  prescribing  the  manner  in  which 
these  two  branches  of  the  legislative  department  shall  be 
chosen,  it  proceeds  to  enumerate  specifically  the  legislative 
powers  which  it  thereby  grants  and  legislative  powers  which  it 
expressly  prohibits,  and,  at  the  conclusion  of  this  specification, 
a  clause  is  inserted  giving  Congress  ''the  power  to  make  all 
laws  which  may  be  necessary  and  proper  for  carrying  into  exe- 
cution the  foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  Government  of  the  United  States  or  in  any 
department  or  office  thereof." 

The  power  of  legislation  granted  by  this  latter  clause  is  by 
its  words  carefully  confined  to  the  specific  objects  before  enum- 
erated. But  as  this  limitation  was  unavoidably  somewhat  in- 
definite, it  was  deemed  necessary  to  guard  more  effectually 
certain  great  cardinal  principles  essential  to  the  liberty  of  the 
citizen  and  to  the  rights  and  equality  of  the  States  by  denying 
to  Congress,  in  express  terms,  any-  power  of  legislation  over 
them.  It  was  apprehended,  it  seems,  that  such  legislation  might 
be  attempted  under  the  pretext  that  it  was  necessary  and 
proper  to  carry  into  execution  the  powers  granted ;  and  it  was 
determined  that  there  should  be  no  room  to  doubt,  where  rights 
of  such  vital  importance  were  concerned,  and  accordingly  this 
clause  is  immediately  followed  by  an  enumeration  of  certain 
subjects  to  which  the  powers  of  legislation  shall  not  extend ;  and 
the  great  importance  which  the  framers  of  the  Constitution 
attached  to  the  privilege  of  the  writ  of  habeas  corpus,  to  protect 
the  liberty  of  the  citizen,  is  proved  by  the  fact  that  its  suspen- 
sion, except  in  cases  of  invasion  and  rebellion,  is  first  in  the  list 
of  prohibited  powers;  and  even  in  these  cases  the  power  is 
denied  and  its  exercise  prohibited  unless  the  public  safety  shall 
require  it.  It  is  true  that  in  the  cases  mentioned  Congress  is  of 
necessity  the  judge  of  whether  the  public  safety  does  or  does 
not  require  it;  and  its  judgment  is  conclusive.  But  the  intro- 
duction of  these  words  is  a  standing  admonition  to  the  legis- 


476    CONSTITUTION  IN  THE  CIVIL  WAR 

lative  body  of  the  danger  of  suspending  it  and  of  the  extreme 
caution  they  should  exercise  before  they  give  the  Government 
of  the  United  States  such  power  over  the  Kberty  of  a  citizen. 

It  is  the  second  article  of  the  Constitution  that  provides  for 
the  organization  of  the  Executive  Department,  and  enumerates 
the  powers  conferred  on  it,  and  prescribes  its  duties.  And  if  the 
high  power  over  the  liberty  of  the  citizens  now  claimed  was  in- 
tended to  be  conferred  on  the  President,  it  would  undoubtedly 
be  found  in  plain  words  in  this  article.  But  there  is  not  a  word 
in  it  that  can  furnish  the  slightest  ground  to  justify  the  exercise 
of  the  power. 

The  article  begins  by  declaring  that  the  Executive  power 
shall  be  vested  in  a  President  of  the  United  States  of  America, 
to  hold  his  office  during  the  term  of  four  years,  and  then  pro- 
ceeds to  describe  the  mode  of  election,  and  to  specify  in  precise 
and  plain  words  the  powers  delegated  to  him  and  the  duties 
imposed  upon  him.  And  the  short  term  for  which  he  is  elected, 
and  the  narrow  limits  to  which  his  power  is  confined,  show  the 
jealousy  and  apprehensions  of  future  danger  which  the  framers 
of  the  Constitution  felt  in  relation  to  that  department  of  the 
Government,  and  how  carefully  they  withheld  from  it  many  of 
the  powers  belonging  to  the  executive  branch  of  the  English 
Government  which  were  considered  as  dangerous  to  the  liberty 
of  the  subject,  and  conferred  (and  that  in  clear  and  specific 
terms)  those  powers  only  which  were  deemed  essential  to  secure 
the  successful  operation  of  the  Government. 

He  is  elected,  as  I  have  already  said,  for  the  brief  term  of 
four  years,  and  is  made  personally  responsible,  by  impeach- 
ment, for  malfeasance  in  office.  He  is,  from  necessity,  and  the 
nature  of  his  duties,  the  Commander-in-Chief  of  the  army  and 
navy,  and  of  the  militia,  when  called  into  actual  service.  But 
no  appropriation  for  the  support  of  the  army  can  be  made  by 
Congress  for  a  longer  term  than  two  years,  so  that  it  is  in  the 
power  of  the  succeeding  House  of  Representatives  to  withhold 
the  appropriation  for  its  support,  and  thus  disband  it,  if,  in 
their  judgment,  the  President  used  or  designed  to  use  it  for 
improper  purposes.   And  although  the  militia,  when  in  actual 


PRESIDENTIAL  DICTATORSHIP        477 

service,  are  under  his  command,  yet  the  appointment  of  the 
officers  is  reserved  to  the  States,  as  a  security  against  the  use  of 
the  mihtary  power  for  purposes  dangerous  to  the  Kberties  of 
the  people  or  the  rights  of  the  States. 

So,  too,  his  powers  in  relation  to  the  civil  duties  and  au- 
thority necessarily  conferred  on  him  are  carefully  restricted,  as 
well  as  those  belonging  to  his  military  character.  He  cannot 
appoint  the  ordinary  officers  of  Government,  nor  make  a  treaty 
with  a  foreign  nation  or  Indian  tribe  without  the  advice  and 
consent  of  the  Senate,  and  cannot  appoint  even  inferior  officers 
unless  he  is  authorized  by  an  act  of  Congress  to  do  so.  He  is  not 
empowered  to  arrest  any  one  charged  with  an  offense  against 
the  United  States,  and  whom  he  may,  from  the  e\adence  before 
him,  beheve  to  be  guilty;  nor  can  he  authorize  any  officer,  ci\il 
or  mihtary,  to  exercise  this  power,  for  the  fifth  article  of  the 
amendments  to  the  Constitution  expressly  proxddes  that  no 
person  "shall  be  deprived  of  Hfe,  liberty,  or  property  without 
due  process  of  law;"  that  is,  judicial  process.  And  even  if  the 
privilege  of  the  writ  of  habeas  corpus  was  suspended  by  act  of 
Congress,  and  a  party  not  subject  to  the  rules  and  articles  of 
war  was  afterwards  arrested  and  imprisoned  by  regular  judicial 
process,  he  could  not  be  detained  in  prison  or  brought  to  trial 
before  a  military  tribunal,  for  the  article  in  the  Amendments  to 
the  Constitution  immediately  following  the  one  above  referred 
to —  that  is,  the  sixth  article—  pro\ddes  that,  "in  all  criminal 
prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy  and 
public  trial  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed,  which  district 
shall  have  been  previously  ascertained  by  law,  and  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation;  to  be  con- 
fronted with  the  witnesses  against  him;  to  have  compulsory 
process  foi  obtaining  witnesses  in  his  favor,  and  to  have  the 
assistance  of  counsel  for  his  defence." 

And  the  only  power,  therefore,  which  the  President  possesses, 
where  the  "life,  liberty,  or  property  "  of  a  private  citizen  is  con- 
cerned, is  the  power  and  duty  prescribed  in  the  third  section  of 
the  second  article,  which  requires  "that  he  shall  take  care  that 


478    CONSTITUTION  IN  THE  CIVIL  WAR 

the  laws  be  faithfully  executed."  He  is  not  authorized  to  exe- 
cute them  himself,  or  through  agents  or  officers,  civil  or  mili- 
tary, appointed  by  himself,  but  he  is  to  take  care  that  they  be 
faithfully  carried  into  execution  as  they  are  expounded  and 
adjudged  by  the  coordinate  branch  of  the  Government  to 
which  that  duty  is  assigned  by  the  Constitution.  It  is  thus 
m.ade  his  duty  to  come  in  aid  of  the  judicial  authority,  if  it  shall 
be  resisted  by  a  force  too  strong  to  be  overcome  without  the 
assistance  of  the  Executive  arm.  But  in  exercising  this  power, 
he  acts  in  subordination  to  judicial  authority,  assisting  it  to 
execute  its  process  and  enforce  its  judgments. 

With  such  provisions  in  the  Constitution,  expressed  in 
language  too  clear  to  be  misunderstood  by  any  one,  I  can  see  no 
ground  whatever  for  supposing  that  the  President,  in  any 
em.ergency  or  in  any  state  of  things,  can  authorize  the  suspens- 
ion of  the  privilege  of  the  writ  of  habeas  corpus,  or  arrest  a 
citizen,  except  in  aid  of  the  judicial  power.  He  certainly  does 
not  faithfully  execute  the  laws  if  he  takes  upon  himself  legisla- 
tive power  by  suspending  the  writ  of  habeas  corpus —  and  the 
judicial  power,  also,  by  arresting  and  imprisoning  a  person 
without  due  process  of  law.  Nor  can  any  argument  be  drawn 
from  the  nature  of  sovereignty,  or  the  necessities  of  government 
for  se]f-defense,  in  times  of  tum.ult  and  danger.  The  Govern- 
ment of  the  United  States  is  one  of  delegated  and  limited  pow- 
ers. It  derives  its  existence  and  authority  altogether  from  the 
Constitution,  and  neither  of  its  branches —  executive,  legisla- 
tive, or  judicial —  can  exercise  any  of  the  powers  of  govern- 
ment beyond  those  specified  and  granted. 

154.  Opinion  of  Attorney-General  Bates} 

I  am  clearly  of  opinion  that,  in  a  tim.e  like  the  present,  when 
the  very  existence  of  the  nation  is  assailed  by  a  great  and  dan- 
gerous insurrection,  the  President  has  the  lawful  discretionary 
power  to  arrest  and  hold  in  custody  persons  known  to  have 
criminal  intercourse  with  the  insurgents,  or  persons  against 

^  July  5,  1 86 1.  McPherson,  Political  History  of  the  United  States  of 
America  during  the  Great  Rebellion,  159-61  passim. 


PRESIDENTIAL  DICTATORSHIP        479 

whom  there  is  probable  cause  for  suspicion  of  such  criminal  com- 
plicity. And  I  think  this  position  can  be  maintained,  in  view 
of  the  principles  already  laid  down,  by  a  very  plain  argument. 

The  Constitution  requires  the  President,  before  he  enters 
upon  the  execution  of  his  office,  to  take  an  oath  that  he  "will 
faithfully  execute  the  office  of  President  of  the  United  States 
and  will,  to  the  best  of  his  ability,  preserve,  protect,  and  defend 
the  Constitution  of  the  United  States."  .  .  . 

The  last  clause  of  the  oath  is  pecuhar  to  the  President.  All 
the  other  officers  of  Government  are  required  to  swear  only 
"to  support  this  Constitution;"  while  the  President  must 
swear  to  "preserve,  protect,  and  defend"  it,  which  implies  the 
power  to  perform  what  he  is  required  in  so  solemn  a  manner  to 
undertake.  And  then  follows  the  broad  and  compendious  in- 
junction to  "take  care  that  the  laws  be  faithfully  executed." 
And  this  injunction,  em^bracing  as  it  does  all  the  laws  —  Con- 
stitution, treaties,  statutes  —  is  addressed  to  the  President 
alone,  and  not  to  any  other  department  or  office  of  the  Govern- 
ment. And  this  constitutes  him,  in  a  peculiar  manner,  and 
above  all  other  officers,  the  guardian  of  the  Constitution  —  its 
preserver,  protector,  and  defender.  .  .  . 

It  is  the  President's  bounden  duty  to  put  down  the  insurrec- 
tion, as,  in  the  language  of  the  act  of  1795,  the  "combinations 
are  too  powerful  to  be  suppressed  by  the  ordinary  course  of 
judicial  proceedings,  or  by  the  powers  vested  in  the  marshals." 
And  this  duty  is  imposed  upon  the  President  for  the  very 
reason  that  the  courts  and  the  marshals  are  too  weak  to  per- 
form it.  The  manner  in  which  he  shall  perform  that  duty  is 
not  prescribed  by  any  law,  but  the  means  of  performing  it  are 
given  in  the  plain  language  of  the  statutes,  and  they  are  all 
means  of  force  —  the  militia,  the  Army,  and  the  Navy.  The 
end,  the  suppression  of  the  insurrection,  is  required  of  him ;  the 
means  and  instruments  to  suppress  it  are  lawfully  in  his  hands ; 
but  the  manner  in  which  he  shall  use  them  is  not  prescribed, 
and  could  not  be  prescribed,  without  a  fore-knowledge  of  all 
the  future  changes  and  contingencies  of  the  insurrection.  He 
is  therefore  necessarily  thrown  upon  his  discretion  as  to  the 


48o    CONSTITUTION  IN  THE  CIVIL  WAR 

manner  in  which  he  will  use  his  means  to  meet  the  var^dng 
exigencies  as  they  arise.  If  the  insurgents  assail  the  nation 
with  an  army  he  may  find  it  best  to  meet  them  with  an  arm.y, 
and  suppress  the  insurrection  on  the  field  of  battle.  If  they  seek 
to  prolong  the  rebelUon  and  gather  strength  by  intercourse 
with  foreign  nations,  he  may  choose  to  guard  the  coast  and 
close  the  ports  with  a  navy,  as  one  of  the  most  efficient  m.eans 
to  suppress  the  insurrection.  And  if  they  employ  spies  and 
emissaries  to  gather  information,  to  forward  secret  supplies, 
and  to  excite  new  insurrections  in  aid  of  the  original  rebelHon, 
he  may  find  it  both  prudent  and  humane  to  arrest  and  imprison 
them.  And  this  may  be  done  either  for  the  purpose  of  bringing 
them  to  trial  and  condign  punishment  for  their  crimes,  or  they 
may  be  held  in  custody  for  the  milder  end  of  rendering  them 
powerless  for  mischief  until  the  exigency  is  past. 

In  such  a  state  of  things  the  President  must,  of  necessity, 
be  the  sole  judge,  both  of  the  exigency  which  requires  him  to 
act,  and  of  the  manner  in  which  it  is  most  prudent  for  him  to 
employ  the  powers  entrusted  to  him,  to  enable  hun  to  dis- 
charge his  constitutional  and  legal  duty;  that  is,  to  suppress  the 
insurrection  and  execute  the  laws.  And  this  discretionary 
power  of  the  President  is  fully  admitted  by  the  Supreme  Court 
in  the  case  of  Martin  vs.  Mott.  .  .  . 

The  insurrection  itself  is  purely  political.  Its  object  is  to 
destroy  the  political  government  of  this  nation,  and  to  estab- 
lish another  political  government  upon  its  ruins.  And  the 
President,  as  the  chief  civil  magistrate  of  the  nation,  and  the 
most  active  department  of  the  Government,  is  eminently  and 
exclusively  political  in  all  its  principal  functions.  As  the 
political  chief  of  the  nation,  the  Constitution  charges  him  with 
its  preservation,  protection,  and  defense,  and  requires  him  to 
take  care  that  the  laws  be  faithfully  executed.  ...  He  has 
no  judicial  powers.  And  the  Judiciary  Department  has  no 
political  powers,  and  claims  none,  and  therefore  (as  well  as  for 
other  reasons  already  assigned)  no  court  or  judge  can  take 
cognizance  of  the  political  acts  of  the  President,  or  undertake 
to  revise  and  reverse  his  political  decisions. 


PRESIDENTIAL  DICTATORSHIP        481 

The  jurisdiction  exercised  under  the  writ  of  habeas  corpus  is 
in  the  nature  of  an  appeal,  (4  Cr.  75,)  for,  as  far  as  concerns  the 
right  of  the  prisoner,  the  whole  object  of  the  process  is  to  re- 
examine and  reverse  or  affirm  the  acts  of  the  person  who  im- 
prisoned him.  And  I  think  it  will  hardly  be  seriously  affirmed 
that  a  judge,  at  chambers,  can  entertain  an  appeal,  in  any 
form,  from  a  decision  of  the  President  of  the  United  States,  and 
especially  in  a  case  purely  poHtical.  .  .  . 

If  by  the  phrase  the  suspension  of  the  privilege  of  the  writ  of 
habeas  corpus,  we  must  understand  a  repeal  of  all  power  to  issue 
the  writ,  then  I  freely  admit  that  none  but  Congress  can  do  it. 
But  if  we  are  at  liberty  to  understand  the  phrase  to  mean,  that 
in  case  of  a  great  and  dangerous  rebellion  like  the  present,  the 
pubHc  safety  requires  the  arrest  and  confinement  of  persons 
implicated  in  that  rebellion,  I  as  freely  declare  the  opinion  that 
the  President  has  lawful  power  to  suspend  the  privilege  of 
persons  arrested  under  such  circum.stances;  for  he  is  especially 
charged  by  the  Constitution  with  the  "public  safety,"  and  he 
is  the  sole  judge  of  the  emergency  which  requires  his  prompt 
action. 

This  power  in  the  President  is  no  part  of  his  ordinary  duty 
in  time  of  peace;  it  is  temporary  and  exceptional,  and  was 
intended  only  to  meet  a  pressing  emergency,  when  the  judiciary 
is  found  to  be  too  weak  to  insure  the  public  safety  —  when  (in 
the  language  of  the  act  of  Congress)  there  are  "combinations 
too  powerful  to  be  suppressed  by  the  ordinary  course  of  judi- 
cial proceedings,  or  by  the  powers  vested  in  the  marshals." 
Then  and  not  till  then,  has  he  the  lawful  authority  to  call  to  his 
aid  the  mihtary  power  of  the  nation,  and  with  that  power  per- 
form his  great  legal  and  constitutional  duty  to  suppress  the 
insurrection.  And  shall  it  be  said  that  when  he  has  fought  and 
captured  the  insurgent  army,  and  has  seized  their  secret  spies 
and  emissaries,  he  is  bound  to  bring  their  bodies  before  any 
judge  who  may  send  him  a  writ  of  habeas  corpus,  "to  do,  sub- 
mit to,  and  receive  whatsoever  the  said  judge  shall  consider  in 
that  behalf?"  .  .  . 


CHAPTER  LII 

THE  WAR   POWER  AND    CIVIL   RIGHTS 

The  theory  upon  which  the  Federal  Government  waged  war  led  to 
many  difficulties  in  actual  practice.  By  the  terms  of  the  proclamation 
declaring  a  blockade,  privateering  was  to  be  treated  as  piracy,  but 
President  Lincoln  shrank  from  the  consequences  when  crews  of  captured 
privateers  were  brought  to  trial.  It  was  well  understood  that  the  Confed- 
erate Government  would  retaliate,  in  respect  to  life  and  liberty,  there- 
fore, the  administration  simply  fell  back  upon  the  rules  and  practices  of 
international  law.  In  dealing  with  the  property  of  secessionists,  greater 
difficulty  was  experienced.  During  the  second  session  of  the  Thirty- 
seventh  Congress,  various  bills  were  considered  which  contemplated  the 
punishment  of  secessionists  by  the  confiscation  of  their  property.  At  the 
same  time,  it  was  generally  hoped  that  the  question  of  slavery  would 
receive  a  definite  settlement.  Confiscation  and  emancipation  were  two 
problems  which  created  bitter  dissensions  in  the  ranks  of  the  governing 
party.  The  following  extracts  from  the  debates  in  Congress  represent  the 
ultra-radical  and  the  conservative  views.  The  Confiscation  Act  adopted 
July  17,  1862,  was  a  compromise  measure.  Briefly  stated,  it  made  rebel- 
lion a  felony  and  fixed  severe  penalties  for  treason  and  rebellion.  It 
directed  the  seizure  of  all  the  property  of  specified  classes  of  persons 
engaged  directly  and  indirectly  in  rebellion,  and  by  action  in  rem  in  the 
courts  of  the  United  States  provided  for  its  condemnation  and  sale  as 
enemies'  property.  When  brought  within  the  military  or  civil  jurisdiction 
of  the  United  States,  by  capture  or  otherwise,  slaves  of  persons  in  rebellion 
were  declared  free.  Fugitive  slaves  were  not  to  be  given  up  unless  their 
owners  declared  under  oath  that  they  had  not  aided  the  rebellion.  The 
President  was  authorized  to  employ  negroes  as  soldiers  and  to  make  pro- 
vision for  the  colonization  of  freedmen  in  some  foreign  country. 

155.  Senator  Collamer  on  Confiscation  of  Rebel  Property.^ 

Mr.  President,  I  have  already  remarked  that  in  whatever 
we  do  we  must  keep  fairly  within  the  Hmitations  of  the  Consti- 
tution. It  will  not  do  to  say  that  because  we  need  to  do  this 
thing,  because  it  is  necessary  in  our  judgment,  we  will  do  it  for 
that  reason.  The  limitations  and  prohibitions  of  power  in  the 
Constitution  were  put  there  on  purpose  to  prevent  our  doing 
such  things  when  we  wanted  to  do  them.  .  .  . 

*  April  24, 1862.  Congressional  Glohe,  37  Cong.,  2  Sess.,  i8og-io,  passim. 


WAR  POWER  AND  CIVIL  RIGHTS     483 

A  considerable  part  of  the  projects  before  the  two  Houses 
propose  to  confiscate  people's  property,  real  and  personal, 
either  all  of  the  people  in  the  South,  or  classes  of  them.  How 
are  you  to  do  it  without  trying  and  convicting  the  men,  as  the 
Constitution  says  men  shall  be  punished  only  in  that  way,  and 
shall  not  be  deprived  of  their  property  but  according  to  due 
process  of  law?  There  has  been  a  recent  discovery  that  there 
is  a  certain  term  —  a  law  phrase  —  which,  perhaps,  the  people 
will  not  understand,  that  has  a  vast  deal  of  hocus  pocus  in  it, 
by  which  we  can  get  rid  of  all  that  sort  of  business.  What  is  it? 
It  is  what  is  called  proceedings  in  rem.  A  man  has  been  guilty 
of  treason.  Well,  what  is  your  Constitution?  Try  him  on  indict- 
ment, by  a  jury.  You  cannot  punish  him  in  any  other  way; 
you  cannot  deprive  him  of  his  property  for  it  in  any  other  way. 
*'To  be  sure,"  say  gentlemen,  ''that  is  a  troublesome  thing; 
but  there  is  a  certain  in  rem  by  which  we  will  let  the  man  en- 
tirely alone,  but  will  seize  hold  of  such  property  as  he  has  got, 
and  we  will  punish  that  by  way  of  proceedings  in  rem;  and  by 
and  by,  when  we  catch  him,  we  will  try  him  and  hang  him, 
though  that  is  another  punishment,  and  the  Constitution  says 
we  shall  not  punish  him  but  once."  So  you  have  proceedings  in 
rem,  and  then  proceedings  in  personam!  That  is  the  discovery! 

Now,  Mr.  President,  what  are  these  proceedings  in  rem, 
where  you  do  not  have  any  jury?  What  is  the  form,  what  is  the 
character  of  them?  They  are  trials  before  prize  courts  or 
admiralty  courts.  In  what  cases?  It  is  when  a  thing  is  the 
instrument  of  wrong,  so  that  in  legal  estimation  it  is  a  guilty 
thing.  Then  you  may  proceed  with  that  thing.  If  a  man  is 
trying  to  smuggle  goods,  you  know  he  cannot  be  guilty  of 
smuggling  without  goods.  The  goods  are  the  instrument  of  the 
wrong;  and  therefore  there  is  a  proceeding  by  which  you  may 
take  and  condemn  the  thing,  for  that  is  what  rem  means,  I 
beheve.  So,  too,  if  a  pirate's  vessel,  with  which  he  marauds 
upon  the  seas  against  the  nations,  is  taken,  it  is  a  guilty  thing, 
it  is  the  instnmient  of  wrong,  and  you  proceed  against  it.  So 
when  men  pursue  the  slave  trade  with  ships,  they  are  the 
instruments  of  the  wrong,  and  you  proceed  against  them  in 


484    CONSTITUTION  IN  THE  CIVIL  WAR 

rem.  In  proceeding  in  rem  you  do  not  give  the  thing  notice 
because  it  cannot  answer;  you  do  not  give  it  a  trial  by  jury,  as 
when  you  proceed  against  the  man.  .  .  . 

This  proceeding  in  rem  is  spoken  of  in  a  manner  which  would 
be  rather  ludicrous  if  it  were  not  so  serious  an  affair,  but  it  is 
no  slight  thing  to  say  that  when  a  man  has  committed  a  crime 
like  that  of  treason,  and  is  within  the  reach  of  your  process, 
you  may  proceed  to  strip  him  of  his  property  or  do  anything 
you  can  do,  as  you  say,  and  then  punish  him  afterwards.  Is  it 
a  rule  that  you  m.ust  do  on  such  occasions  whatever  you  have 
physical  means  to  do,  and  therefore,  if  you  cannot  reach  him  in 
any  other  way,  if  he  has  gone  out  of  the  reach  of  process,  you 
must  take  his  property  because  you  have  nothing  else  to  take? 
If  a  man  is  guilty  of  counterfeiting  your  Treasury^  notes,  and 
you  cannot  catch  him,  if  he  is  out  of  the  way,  why  not,  on  the 
same  principle,  have  a  law  to  cut  his  wife's  throat  if  he  has  no 
property?  Sir,  the  whole  idea  in  my  estimation  is  entirely 
wrong,  and  an  attempt  to  do  that  which  the  provision  of  the 
Constitution  was  intended  to  guard  against.  It  nowhere  says 
that,  if  }'0u  cannot  punish  the  man  because  he  gets  out  of  the 
reach  of  process,  therefore  you  may  disregard  the  provisions  of 
the  Constitution  and  take  some  other  way.  There  is  nothing 
of  that  kind  in  the  Constitution.  I  take  it  we  have  all  our 
powers  from  the  Constitution,  and  that  in  itself  inhibits  to  us 
by  absolute  abnegation  that  we  shall  exercise  any  powers  but 
what  are  there  granted,  and  all  the  rest  were  reserved  from  us. 

Mr.  President,  this  word  "confiscate"  literally  means  "put 
into  the  Treasury,"  and  it  can  legitimately  be  applied  only  to 
that  out  of  which  you  can  get  something  to  put  into  the 
Treasury.  That  is  truly  the  meaning  of  the  term.  But,  sir, 
when  we  legislate  for  the  people  of  the  Southern  seceded  States 
we  do  it  because  they  are  our  people.  We  treat  all  this  secession 
as  void,  and  I  take  it,  that  that  which  is  void  can  have  no  legal 
effect.  It  can  have  no  effect  to  confiscate  anybody's  goods  or 
annihilate  the  States;  nor  can  it  have  any  other  legal  effect 
whatever.  When  we  legislate  for  that  people  as  our  people  in 
common  with  the  rest  of  our  citizens,  we  must  allow  to  them  all 


WAR  POWER  AND  CIVIL  RIGHTS     485 

the  rights  and  privileges,  immunities  and  protections  that  the 
Constitution  gives  to  citizens  of  the  Union.  I  have  therefore 
made  the  remarks  which  I  have  made  upon  this  question  on 
the  basis  that  we  cannot  take  courses  in  relation  to  them,  by 
laws  m,ade  by  us  over  them  as  a  people  bound  by  those  laws, 
on  any  other  grounds  than  those  which  apply  to  all  our  people.  If 
we  make  laws  by  our  power  under  the  Constitution  we  must  re- 
gard the  prohibitions  of  the  Constitution,  else  we  are  lawless.  .  .  . 

It  is  said,  however,  that  we  are  at  war,  and  that  we  have 
become  elevated  to  the  privileges,  and  are  entitled  to  exercise 
the  rights,  of  a  belligerent ;  that  this  power  of  confiscation  is  a 
sort  of  war  power  over  our  own  citizens  that  we  have  a  right 
to  exercise  in  the  capacity  of  a  belligerent.  .  .  .  Undoubtedly, 
so  far  as  regards  the  conducting  of  the  war,  it  should  be  con- 
ducted according  to  the  laws  of  nations,  and,  if  you  please, 
according  to  the  usages  of  nations  in  these  times  of  civilization ; 
but  when  we  come  to  the  rights  of  belligerents,  can  we  apply 
them.?  When  we  conquer  a  country  with  which  we  are  at  war, 
we  own  the  public  property  there.  Now,  we  have  conquered 
Tennessee,  if  you  please.  Do  we  own  the  capitol  at  Nashville 
to-day?  Do  we  own  any  of  the  universities  and  colleges  and 
public  property  of  the  State  of  Tennessee  to-day?  If  they  are 
treated  as  belligerents,  then  when  you  conquer  the  country, 
the  property  in  the  land  remains  in  the  individuals  who  owned 
it  before,  and  the  nation  acquires  no  title  to  it  by  conquest. 
Here  is  an  attempt  to  get  possession  of  all  that  property  of 
individuals  who  have  been  concerned  in  this  rebellion.  And 
how?  As  a  belligerent.  According  to  the  laws  of  nations,  a 
belligerent  does  not  get  it.  I  know  that  the  Constitution  pro- 
vides that  Congress  may  issue  letters  of  marque  and  reprisal, 
and  make  regulations  in  relation  to  captures  or  seizures  by  sea 
and  land.  That  looks  to  a  state  of  war,  undoubtedly.  What  is  a 
seizure  or  capture?  What  is  the  meaning  of  the  term?  Some- 
thing that  you  take,  make  prize  of,  carry  away.  Can  you  carry 
away  the  farms  of  an  enemy?  Are  they  the  subject  of  capture? 
Not  at  all. 

But,  Mr.  President,  when,  after  a  war  with  another  nation, 


486    CONSTITUTION  IN  THE  CIVIL  WAR 

you  make  peace  with  it,  all  matters  are  ended,  depending  on  the 
form  of  your  articles  of  peace.  It  may  be  the  status  ante  hel- 
ium, it  may  be  uti  possidetis,  depending  on  the  terms  of  your 
treaty;  but  all  matters  are  then  ended.  Now,  when  we  have 
conquered  these  people,  taken  military  possession  of  the  coun- 
try, can  we  not  punish  the  men  who  have  been  in  rebelHon; 
can  we  not  render  it  legitim.ate  to  hang  them?  Certainly. 
Could  you  do  so  with  enemies  with  whom  you  have  made  war 
and  peace?  No;  but  in  such  cases,  when  peace  was  declared, 
the  past  would  be  wiped  out. 

Again,  to  treat  with  them  and  treat  about  them  as  being 
belligerents,  is  to  acknowledge  them,  so  far  as  this  war  is  con- 
cerned, as  a  coequal  power.  We  have  complained  that  any  for- 
eign nation  acknowledged  and  recognized  them  as  in  a  state  of 
belligerency.  We  thought  it  was  pretty  hard  usage  to  us.  I  do 
not  see  it  in  that  light  exactly;  but  at  any  rate,  especially  after 
what  has  been  said  to  the  other  nations  of  the  world  by  our 
functionary  and  correspondent  of  the  State  Department,  it  ill 
becomes  us  to  take  measures  founded  on  the  ground  that  they 
are  coequals  and  belligerents,  and  that  we  may  make  laws  ac- 
cordingly. This  legislating  for  that  people  as  bound  by  the  laws 
that  we  here  make,  and  at  the  same  time  legislating  for  them 
as  enemies  and  belligerents,  not  bound  by  the  laws  we  make,  is 
to  my  mind  utterly  inconsistent,  utterly  irreconcilable,  and  I 
shall  not,  therefore,  make  any  further  remarks,  in  relation  to 
what  might  by  possibiUty  be  done  by  us  as  belligerents.  .  .  . 

156.  Senator  Sumner  on  the  Rights  of  War} 

The  War  Powers  of  Congress  are  derived  from  the  Constitu- 
tion, but  when  once  set  in  motion,  are  without  any  restraint 
from  the  Constitution,  so  that  what  is  done  in  pursuance  of 
them  is  at  the  same  time  under  the  Constitution  and  outside 
the  Constitution.  It  is  under  the  Constitution  in  its  beginning 
and  origin.  It  is  outside  the  Constitution  in  the  latitude  with 
which  it  may  be  conducted.  But,  whether  under  the  Constitu- 
tion or  outside  the  Constitution,  all  that  is  done  in  pursuance  of 

^  June  27, 1862.  Congressional  Globe,  37  Cong.,  2  Sess.,  2963-64  passim. 


WAR  POWER  AND  CIVIL  RIGHTS     487 

the  War  Powers  is  constitutional.  It  is  easy  to  cry  out  against 
it;  it  is  easy,  by  misapplication  of  the  Constitution,  to  call  it  in 
question ;  but  it  is  only  by  such  a  misapplication,  or  by  a  sense- 
less cry,  that  its  complete  constitutionaUty  can  for  a  moment 
be  drawn  into  doubt. 

The  language  of  the  Constitution  is  plain  and  ample.  It 
confers  upon  Congress  all  the  specific  powers  incident  to  war, 
and  then  further  authorizes  it  "to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execution  the  fore- 
going powers."  .  .  . 

The  bills  now  under  consideration  are  obviously  founded  on 
the  War  Powers.  .  .  . 

.  .  .  The  Constitution  is  entirely  inapplicable.  Sacred  and 
inviolable,  the  Constitution  is  made  for  friends  who  acknowl- 
edge it,  and  not  for  enemies  who  disavow  it;  and  it  is  made  for 
a  state  of  peace,  and  not  for  the  fearful  exigencies  of  war.  War, 
as  it  comes,  treads  down  within  its  sphere  all  rights  except  the 
Rights  of  War.  Born  of  violence,  and  looking  to  violence  for 
victory,  it  discards  all  Hmitations,  except  such  as  are  supplied 
by  the  Rights  of  War,  Once  begun,  war  is  a  law  unto  itself;  or, 
in  other  words,  it  has  a  law  of  its  own,  which  is  a  part  of  itself. 
And  just  in  proportion  as  you  seek  to  moderate  it  by  constitu- 
tional limitations,  do  you  take  from  war  something  of  its  effi- 
ciency. In  vain  do  you  equip  our  soldiers  with  the  best  of  weap- 
ons or  send  into  the  field  the  most  powerful  batteries,  the  latest 
invention  of  consummate  science,  if  you  direct  them  all  in  full 
career  to  stand  still  for  an  indictment  or  other  due  process  of 
law,  or  at  least  for  the  reading  of  the  riot  act.  But,  sir,  if  you 
undertake  to  Hmit  the  Rights  of  War  by  the  Constitution, 
where  are  you  to  stop?  If  the  Constitution  can  interfere  with 
one,  it  can  interfere  with  all.  If  the  Constitution  can  wrest 
from  Government  the  weapons  of  confiscation  and  Hberation, 
there  is  no  other  weapon  in  the  whole  arsenal  of  war  which  it 
may  not  take  also. 

Sir,  the  Constitution  is  guilty  of  no  such  absurdity.  It  was 
made  by  wise  men,  familiar  with  pubhc  law,  who  saw  clearly 
the  difference  between  peace  and  war,  and  who  established 


488    CONSTITUTION  IN  THE  CIVIL  WAR 

powers  accordingly.  In  circumscribing  the  Peace  Powers  with 
constitutional  checks,  they  left  untouched  the  War  Powers. 
They  declared  that,  in  the  administration  of  the  Peace  Powers, 
all  should  be  able  to  invoke  the  Constitution  as  a  constant  safe- 
guard. But,  in  bestowing  upon  the  Government  War  Powers 
without  limitation,  they  embodied  in  the  Constitution  all  the 
Rights  of  War  as  completely  as  if  those  rights  had  all  been 
expressly  set  down  and  enumerated;  and  among  the  first  of 
these  rights  is  the  right  to  disregard  all  the  rights  of  peace.  .  .  . 
At  the  risk  of  repetition,  but  for  the  sake  of  clearness,  let  me 
now  repeat  the  propositions  on  which  I  confidently  rest. 

1.  The  Rights  of  Sovereignty  are  derived  from  the  Constitu- 
tion, and  can  be  exercised  only  in  conformity  with  the  require- 
ments of  the  Constitution:  so  that  all  penal  statutes,  punishing 
treason,  must  carefully  comply  with  these  requirements,  .  .  . 

2.  The  Rights  of  War  are  under  the  Constitution  in  their 
origin,  but  outside  the  Constitution  in  their  execution.  In 
other  words  the  Constitution  confers  the  Rights  of  War,  but 
sets  no  limits  to  them,  so  that  Statutes  to  enforce  them  are  not 
to  be  regarded  as  mere  penal  statutes,  restricted  by  the  Con- 
stitution. But  these  rights  belong  to  a  state  of  war,  and  neces- 
sarily cease  with  the  war.  This  is  the  case  of  the  House  bills 
now  under  discussion. 

3.  Rebels  in  arms  are  public  enemies,  who  can  claim  no  safe- 
guard from  the  Constitution,  and  they  may  be  pursued  and 
conquered  according  to  the  Rights  of  War. 

4.  All  rebels  are  criminals,  liable  to  punishment  according  to 
penal  statutes,  and  in  all  proceedings  against  them  as  such, 
they  are  surrounded  by  the  safeguards  of  the  Constitution. 

5.  The  Rights  of  War  may  be  enforced  by  act  of  Congress, 
which  is  the  highest  form  of  the  national  will.  .  .  . 

157.  Representative  Thomas  on  Confiscation} 

.  .  .  The  positions  assumed  by  the  friends  of  these  measures 
are,  that  we  may  deal  with  those  engaged  in  this  rebelhon  as 

^  May  24,  1862.  Congressional  Globe,  37  Cong.,  2  Sess.,  App.,  219-20 
passim. 


WAR  POWER  AND  CIVIL  RIGHTS     489 

public  enemies  and  as  traitors ;  that  regarding  them  as  enemies, 
we  may  use  against  them  all  the  powers  granted  by  the  law  of 
nations;  and  viewing  them  as  rebels  "or  traitors,  we  may  use 
against  them  all  the  powers  granted  by  the  Constitution;  and 
that  in  either  view,  these  bills  can  be  sustained. 

Dealing  with  them  as  public  enemies,  it  is  said  that  under  the 
existing  law  of  nations  we  have  a  clear  right  to  confiscate  the 
entire  private  property  on  the  land  as  well  as  the  sea,  real  and 
personal,  of  those  in  arms,  and  of  non-combatants  who  may  in 
any  way  give  aid  and  comfort  to  the  rebellion.  ...  I  deny  the 
proposition,  Mr.  Speaker.  .  .  .  Such  is  not  the  law  of  nations. 

To  give  a  plausible  aspect  to  the  proposition,  the  advocates 
of  this  bill  have  gone  back  to  Grotius  and  to  Bynkershoek  for 
the  rules  of  war,  and  even  then  have  omitted  to  give  what 
Grotius  calls  the  temperamenta,  or  restraints  upon  the  rules. 
You  might  as  well  attempt  to  substitute  the  code  of  Moses  for 
the  beatitudes  of  the  Gospel.  Anything  can  be  estabHshed  by 
such  resort  to  the  authorities.  By  the  older  writers  you  can 
prove  not  only  all  the  property  of  the  vanquished  may  be 
taken,  but  that  every  prisoner  may  be  put  to  death.  .  .  . 

Commerce,  ci\'ilization.  Christian  culture,  have  tempered 
and  softened  the  rigor  of  the  ancient  rules ;  and  the  State  which 
should  to-day  assume  to  put  them  in  practice  would  be  an  out- 
cast from  the  society  of  nations.  Nay,  more,  they  would  com- 
bine, and  rightfully  combine,  to  stay  its  hand.  For  the  modern 
law  of  war,  you  must  look  to  the  usages  of  civilized  States,  and 
to  the  publicists  who  have  explained  and  enforced  them.  Those 
usages  constitute  themselves  the  laws  of  war. 

In  relation  to  the  capture  and  confiscation  of  private  pro- 
perty on  the  land,  I  venture  to  say,  with  great  confidence,  and 
after  careful  examination,  that  the  result  of  the  whole  matter 
has  never  been  better  stated  than  by  our  own  great  pubhcist, 
Mr.  Wheaton : 

"  But  by  the  modern  usage  of  nations,  which  has  now  ac- 
quired the  force  of  law,  temples  of  religion,  public  edifices  de- 
voted to  civil  purposes  only,  monuments  of  art,  and  repositories 
of   science,  are   exempted   from   the   general  operations  of  war. 


490    CONSTITUTION  IN  THE  CIVIL  WAR 

Private  property  on  land  is  also  exempt  from  confiscation,  with 
the  exception  of  such  as  may  become  booty  in  special  cases, 
when  taken  from  enemies  in  the  field  or  in  besieged  towns, 
and  of  military  contributions  levied  upon  the  inhabitants  of  the 
hostile  territory.  This  exemption  extends  even  to  the  case  of  an 
absolute  and  unqualified  conquest  of  the  enemy's  country."  — 
Elements  of  International  Law,  p.  421.  .  .  . 

The  property  to  which  the  bill  applies  is  not,  under  the  law  of 
nations,  prize,  it  is  not  booty,  it  is  not  contraband  of  war.  It  is 
not  enforced  military  contribution.  It  is  not  property  used  or 
employed  in  the  war  or  in  resistance  to  the  laws,  and,  therefore, 
clearly  to  be  distinguished  from  that  covered  by  the  statute  of 
August  6,  1861.  It  is  private  property  outside  of  the  conflict  of 
arms,  forfeited  not  because  it  is  the  instrument  of  offence,  but 
as  a  penalty  for  the  crime  of  the  owner.  The  disguise  of  the 
proceeding  in  rem  is  too  thin  and  transparent.  No  lawyer,  no 
man  of  common  sense  will  be  deceived  by  it.  The  proceeding, 
in  spirit,  in  substance,  and  in  effect,  is  the  punishment  of  trea- 
son by  the  forfeiture  of  a  man's  entire  estate,  real  and  personal, 
without  trial  by  jury,  and  in  utter  disregard  of  the  provision  of 
the  Constitution  which  limits  the  forfeiture  for  treason  to  the 
life  of  the  person  attainted.  .  .  . 


CHAPTER  LIII 

MARTIAL   LAW   AND    THE   CONSTITUTION 

Military  arrests  continued  through  the  war,  not  only  in  the  border 
States,  but  in  States  remote  from  the  theater  of  war.  The  procedure  of 
the  Government  was  most  irregular;  but  in  September,  1862,  the  Presi- 
dent definitely  assumed  the  power  to  proclaim  martial  law  generally. 
Military  districts  under  the  control  of  provost  marshals  were  established; 
and  "all  rebels  and  insurgents,  their  aiders  and  abettors,  and  all  persons 
discouraging  volunteer  enlistments,  resisting  militia  drafts,  or  guilty  of 
any  disloyal  practice,  affording  aid  and  comfort  to  the  rebels,"  were 
declared  "subject  to  martial  law  and  liable  to  trial  and  punishment  by 
courts  martial  or  military  commission."  Over  against  the  radical  utter- 
ances of  Thaddeus  Stevens,  for  whom  no  war  measures  were  too  strong, 
one  must  put  the  sober  judgment  of  Benjamin  R.  Curtis  in  his  widely  read 
pamphlet  on  The  Executive  Power.  It  was  not  until  after  the  war  that 
an  authoritative  opinion  relative  to  these  military  tribunals  was  secured 
from  the  Supreme  Court. 

158.  Power  of  Congress  to  Create  a  Dictator} 

.  .  .  When  the  Constitution  is  repudiated,  and  set  at  de- 
fiance by  an  amied  rebellion,  too  powerful  to  be  quelled  by 
peaceful  means,  or  by  any  rules  provided  for  the  regulation  of 
the  land  and  naval  forces,  the  Constitution  itself  grants  to  the 
President  and  Congress  a  supplemental  power,  which  it  was 
impossible  to  define,  because  it  must  go  on  increasing  and  vary- 
ing according  to  the  increasing  and  vary-ing  necessities  of  the 
nation.  The  Constitution  makes  it  the  duty  of  the  President  to 
see  that  all  the  laws  be  executed.  If  any  unforeseen  and  uncon- 
trollable emergency  should  arise  endangering  the  existence  of 
the  Republic,  and  there  were  no  legal  provision  or  process  by 
which  the  danger  could  be  averted,  the  section  of  the  Constitu- 
tion which  says  that  ''the  President  shall  take  care  that  the 
laws  shall  be  faithfully  executed"  creates  him,  for  the  time 
being,  as  much  a  dictator  as  a  decree  of  the  Roman  senate  that 
the  consul  "should  take  care  that  the  commonwealth  should 

^  Representative  Stevens,  January  22,  1862.  Congressional  Globe,  37 
Cong.,  2  Sess.,  440  passim. 


492    CONSTITUTION  IN  THE  CIVIL  WAR 

receive  no  detriment"  made  him  a  dictator,  and  gave  him  all 
power  necessary  for  the  public  safety,  whether  the  means  were 
inscribed  on  their  tables  or  not.  Of  course  such  power  would  be 
limited  by  the  necessity,  and  ought  to  exist  only  until  Congress 
could  be  convened.  The  Romans,  I  beheve,  limited  theirs  to 
six  months.  But  when  Congress  would  assemble,  they  would 
possess  the  same  full  powers.  They  are  authorized  to  raise  ar- 
mies and  navies;  to  organize  and  call  out  the  mihtia  "to  sup- 
press insurrection  and  repel  invasion."  Lest  these  enumerated 
acts  should  prove  insufficient,  it  wisely  pro^'ides,  that  — 

"Congress  shall  have  power  to  make  all  laws  that  shall  be 
necessary  and  proper  for  carr>ang  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or  in  any  department  or 
officer  thereof." 

The  Government  is  empowered  to  suppress  insurrection ;  its 
Executive  is  enjoined  "to  see  all  the  laws  faithfully  executed;" 
Congress  is  granted  power  to  pass  all  laws  necessary  to  that 
end.  If  no  other  means  were  left  to  save  the  Republic  from  de- 
struction, I  believe  we  have  power,  under  the  Constitution  and 
according  to  its  express  provision,  to  declare  a  dictator,  without 
confining  the  choice  to  any  officer  of  the  Government.  .  .  . 

159.  ^^  The  Executive  Power J^"^ 

The  only  supposed  source  or  measure  of  these  vast  powers 
appears  to  have  been  designated  by  the  President,  in  his  reply 
to  the  address  of  the  Chicago  clergymen,  in  the  following 
words:  "Understand,  I  raise  no  objection  against  it  on  legal  or 
constitutional  grounds;  for,  as  commander-in-chief  of  the  army 
and  navy,  in  time  of  war,  I  suppose  I  have  a  right  to  take  any 
measure  which  may  best  subdue  the  enemy. ^^  This  is  a  clear  and 
frank  declaration  of  the  opinion  of  the  President  respecting 
the  origin  and  extent  of  the  power  he  supposes  himself  to 
possess;  and,  so  far  as  I  know,  no  source  of  these  powers  other 
than  the  authority  of  commander-in-chief  in  time  of  war,  has  exer 
been  suggested.  .  .  . 

^  Benjamin  R.  Curtis,  The  Executive  Power  (1862),  passim. 


MARTIAL  LAW  AND  CONSTITUTION  493 

.  .  .  Indeed,  the  proclamation  of  September  24,  1862,  fol- 
lowed by  the  orders  of  the  war  department,  intended  to  carry 
it  into  practical  effect,  are  manifest  assumptions,  by  the  Presi- 
dent, of  powers  delegated  to  the  Congress  and  to  the  Judicial 
department  of  the  government.  It  is  a  clear  and  undoubted 
prerogative  of  Congress  alone,  to  define  all  offences,  and  to 
affix  to  each  some  appropriate  and  not  cruel  or  unusual  pun- 
ishment. But  this  proclamation  and  these  orders  create  new 
offences,  not  known  to  any  law  of  the  United  States.  "Dis- 
couraging enlistments,"  and  "any  disloyal  practice,"  are  not 
offences  known  to  any  law  of  the  United  States.  At  the  same 
time,  they  may  include,  among  many  other  things,  acts  which 
are  offences  against  the  laws  of  the  United  States,  and,  among 
others,  treason.  Under  the  Constitution  and  laws  of  the 
United  States,  except  in  cases  arising  in  the  land  and  naval 
forces,  every  person  charged  with  an  offence  is  expressly  re- 
quired to  be  proceeded  against,  and  tried  by  the  judiciary  of 
the  United  States  and  a  jury  of  his  peers;  and  he  is  required 
by  the  Constitution  to  be  punished,  in  conformity  with  some 
act  of  Congress  applicable  to  the  offence  proved,  enacted  before 
its  commission.  But  this  proclamation  and  these  orders  remove 
the  accused  from  the  jurisdiction  of  the  judiciary;  they  sub- 
stitute a  report,  made  by  some  deputy  provost  marshal,  for  the 
presentment  of  a  grand  jury;  they  put  a  mifitary  commission 
in  place  of  a  judicial  court  and  jury  required  by  the  Constitu- 
tion ;  and  they  apply  the  discretion  of  the  commission  and  the 
President,  fixing  the  degree  and  kind  of  punishment,  instead 
of  the  law  of  Congress  fixing  the  penalty  of  the  offence.  .  .  . 

When  the  Constitution  says  that  the  President  shall  be  the 
commander-in-chief  of  the  army  and  navy  of  the  United 
States,  and  of  the  militia  of  the  several  States  when  called  into 
the  actual  service  of  the  United  States,  does  it  mean  that  he 
shall  possess  military  power  and  command  over  all  citizens  of  the 
United  States;  that,  by  mifitary  edicts,  he  may  control  all  citi- 
zens, as  if  enlisted  in  the  army  or  navy,  or  in  the  militia  caUed 
into  the  actual  service  of  the  United  States  ?  Does  it  mean  that 
he  may  make  himself  a  legislator,  and  enact  penal  laws  govern- 


494    CONSTITUTION  IN  THE  CIVIL  WAR 

ing  the  citizens  of  the  United  States,  and  erect  tribunals,  and 
create  offices  to  enforce  his  penal  edicts  upon  citizens?  Does  it 
mean  that  he  may,  by  a  prospective  executive  decree,  repeal 
and  annul  the  laws  of  the  several  States,  which  respect  subjects 
reserved  by  the  Constitution  for  the  exclusive  action  of  the 
States  and  the  people  ?  The  President  is  the  commander-in- 
chief  of  the  army  and  navy,  not  only  by  force  of  the  Constitu- 
tion, but  under  and  subject  to  the  Constitution,  and  to  every 
restriction  therein  contained,  and  to  every  law  enacted  by  its 
authority,  as  completely  and  clearly  as  the  private  in  his 
ranks.  .  .  . 

In  time  of  war,  a  military  commander,  whether  he  be  the 
commander-in-chief,  or  one  of  his  subordinates,  must  possess 
and  exercise  powers  both  over  the  persons  and  the  property  of 
citizens  which  do  not  exist  in  time  of  peace.  But  he  possesses 
and  exercises  such  powers,  not  in  spite  of  the  Constitution  and 
laws  of  the  United  States,  or  in  derogation  from  their  authority, 
hut  in  virtue  tliereof  and  in  strict  subordination  thereto.  The  gen- 
eral who  moves  his  army  over  private  property  in  the  course 
of  his  operations  in  the  field,  or  who  impresses  into  the  public 
service  means  of  transportation,  or  subsistence,  to  enable  him 
to  act  against  the  enemy,  or  who  seizes  persons  within  his  lines 
as  spies,  or  destroys  suppUes  in  immediate  danger  of  falling  into 
the  hands  of  the  enemy,  uses  authority  unknown  to  the  Consti- 
tution and  laws  of  the  United  States  in  time  of  pea<:e ;  but  not 
unknoT\Ti  to  that  Constitution  and  those  laws  in  time  of  war. 
The  power  to  declare  war,  includes  the  power  to  use  the  cus- 
tomary and  necessary  means  effectually  to  carry  it  on.  As  Con- 
gress may  institute  a  state  of  war,  it  may  legislate  into  existence 
and  place  under  executive  control  the  means  for  its  prosecution. 
And,  in  time  of  war,  without  any  special  legislation,  not  the 
commander-in-chief  only,  but  every  commander  of  an  expedi- 
tion, or  of  a  mihtary  post,  is  lawfully  empowered  by  the  Consti- 
tution and  laws  of  the  United  States  to  do  whatever  is  neces- 
sary, and  is  sanctioned  by  the  laws  of  war,  to  accomplish  the 
lawful  objects  of  his  command.  But  it  is  obvious  that  this 
imphed  authority  must  find  early  limits  somewhere.  If  it  were 


MARTIAL  LAW  AND  CONSTITUTION  495 

admitted  that  a  commanding  general  in  the  field  might  do  what- 
ever in  his  discretion  might  be  necessary  to  subdue  the  enemy, 
he  could  levy  contributions  to  pay  his  soldiers ;  he  could  force 
conscripts  into  his  service;  he  could  drive  out  of  the  entire 
country  all  persons  not  desirous  to  aid  him;  —  in  short,  he 
would  be  the  absolute  master  of  the  country  for  the  time  being. 

No  one  has  ever  supposed  —  no  one  will  now  undertake  to 
maintain  —  that  the  commander-in-chief,  in  time  of  war,  has 
any  such  lawful  authority  as  this. 

What,  then,  is  his  authority  over  the  persons  and  property 
of  citizens?  I  answer,  that,  over  all  persons  enHsted  in  his 
forces  he  has  military  power  and  command ;  that  over  all  per- 
sons and  property  within  the  sphere  of  his  actual  operations  in 
the  field,  he  may  lawfully  exercise  such  restraint  and  control 
as  the  successful  prosecution  of  his  particular  military  enter- 
prise may,  in  his  honest  judgment,  absolutely  require;  and  upon 
such  persons  as  have  committed  offences  against  any  article 
of  war,  he  may,  through  appropriate  mihtary  tribunals,  inflict 
the  punishment  prescribed  by  law.  And  there  his  lawful  author- 
ity ends. 

160.  Ex  parte  Milligan} 

Mr.  Justice  Davis  delivered  the  opinion  of  the  Court: 
.  .  .  The  controlUng  question  in  the  case  is  this:  Upon  the 
facts  stated  in  Milligan's  petition,  and  the  exhibits  filed,  had 
the  military  commission  mentioned  in  it  jurisdiction,  legally, 
to  try  and  sentence  him  ?  Milligan,  not  a  resident  of  one  of  the 
rebellious  States,  or  a  prisoner  of  war,  but  a  citizen  of  Indiana 
for  twenty  years  past,  and  never  in  the  military  or  naval  serv- 
ice, is,  while  at  his  home,  arrested  by  the  mihtary  power  of 
the  United  States,  imprisoned,  and,  on  certain  criminal  charges 
preferred  against  him,  tried,  convicted,  and  sentenced  to  be 
hanged  by  a  mihtary  commission,  organized  under  the  direction 
of  the  military  commander  of  the  mihtary  district  of  Indiana. 
Had  this  tribunal  the  legal  power  and  authority  to  tr>-  and 
punish  this  man  ?  .  .  . 

*  Supreme  Court  of  the  United  States,  1867.  4  Wallace,  2. 


496    CONSTITUTION  IN  THE  CIVIL  WAR 

...  The  Constitution  of  the  United  States  is  a  law  for  rulers 
and  people,  equally  in  war  and  in  peace,  and  covers  with  the 
shield  of  its  protection  all  classes  of  men,  at  all  times,  and  under 
all  circumstances.  No  doctrine  involving  more  pernicious  con- 
sequences was  ever  invented  by  the  wit  of  man  than  that  any 
of  its  provisions  can  be  suspended  during  any  of  the  great  exi- 
gencies of  governm^ent.  Such  a  doctrine  leads  directly  to  an- 
archy or  despotism,  but  the  theory  of  necessity  on  which  it  is 
based  is  false;  for  the  government,  within  the  Constitution, 
has  all  the  powers  granted  to  it  which  are  necessary  to  preserve 
its  existence;  as  has  been  happily  proved  by  the  result  of  the 
great  effort  to  throw  off  its  just  authority. 

Have  any  of  the  rights  guaranteed  by  the  Constitution 
been  violated  in  the  case  of  Milligan?  and  if  so,  what  are 
they? 

Every  trial  involves  the  exercise  of  judicial  power ;  and  from 
what  source  did  the  military  commission  that  tried  him  derive 
their  authority  ?  Certainly  no  part  of  the  judicial  power  of  the 
country  was  conferred  on  them ;  because  the  Constitution  ex- 
pressly vests  it  "in  one  supreme  court  and  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  establish," 
and  it  is  not  pretended  that  the  commission  was  a  court 
ordained  and  established  by  Congress.  They  cannot  justify 
on  the  mandate  of  the  President,  because  he  is  controlled  by 
law,  and  has  his  appropriate  sphere  of  duty,  which  is  to  execute, 
not  to  make,  the  laws ;  and  there  is  "  no  unwritten  criminal  code 
to  which  resort  can  be  had  as  a  source  of  jurisdiction."  .  .  . 

.  .  .  One  of  the  plainest  constitutional  provisions  was,  there- 
fore, infringed  when  Milligan  was  tried  by  a  court  not  ordained 
and  estabhshed  by  Congress,  and  not  composed  of  judges 
appointed  during  good  behavior.  .  .  . 

Another  g-aarantee  of  freedom  was  broken  when  Milligan 
was  denied  a  trial  by  jury.  .  .  . 

The  discipline  necessary  to  the  efficiency  of  the  arm.y  and 
navy  required  other  and  swifter  modes  of  trial  than  are  fur- 
nished by  the  common-law  courts;  and,  in  pursuance  of  the 
pov/er  conferred  by  the  Constitution,  Congress  has  declared 


MARTIAL  LAW  AND  CONSTITUTION  497 

the  kinds  of  trial,  and  the  manner  in  which  they  shall  be  con- 
ducted, for  offenses  committed  while  the  party  is  in  the  military 
or  naval  service.  Every  one  connected  with  these  branches  of 
the  public  service  is  amxnable  to  the  jurisdiction  which  Congress 
has  created  for  their  governm.ent,  and,  while  thus  serving,  sur- 
renders his  right  to  be  tried  by  the  civil  courts.  All  other  per- 
sons, citizens  of  States  where  the  courts  are  open,  if  charged 
with  crime,  are  guaranteed  the  inestimable  privilege  of  trial 
by  jury.  This  privilege  is  a  vital  principle,  underlying  the  whole 
administration  of  criminal  justice ;  it  is  not  held  by  sufferance, 
and  cannot  be  frittered  away  on  any  plea  of  State  or  political 
necessity.  .  .  . 

It  is  claimed  that  martiaJ  law  covers  with  its  broad  mantle 
the  proceedings  of  this  military  commission.  The  proposition 
is  this :  that  in  a  tim.e  of  war  the  comm_ander  of  an  armed  force 
(if,  in  his  opinion,  the  exigencies  of  the  country  demand  it, 
and  of  which  he  is  the  judge)  has  the  power,  within  the  Hues 
of  his  military  district,  to  suspend  all  civil  rights  and  their 
remedies,  and  subject  citizens  as  well  as  soldiers  to  the  nile  of 
his  will;  and  in  the  exercise  of  his  lawful  authority  cannot  be 
restrained,  except  by  his  superior  officer  or  the  President  of 
the  United  States. 

If  this  position  is  sound  to  the  extent  claimed,  then  when  war 
exists,  foreign  or  domestic,  and  the  country  is  subdivided  into 
military  departm_ents  for  mere  convenience,  the  commander 
of  one  of  them  can,  if  he  chooses,  within  his  limits,  on  the  plea 
of  necessity,  with  the  approval  of  the  Executive,  substitute 
military  force  for,  and  to  the  exclusion  of,  the  laws,  and  punish 
all  persons,  as  he  thinks  right  and  proper,  without  fixed  or 
certain  rules. 

The  statement  of  this  proposition  shows  its  importance ;  for, 
if  true,  republican  government  is  a  failure,  and  there  is  an  end 
of  liberty  regulated  by  law.  .  .  . 

.  .  .  Unquestionably,  there  is  then  an  exigency  which 
demands  that  the  government,  if  it  should  see  fit,  in  the  exer- 
cise of  a  proper  discretion,  to  make  arrests,  should  not  be  re- 
quired to  produce  the  persons  arrested  in  answer  to  a  writ  of 


498    CONSTITUTION  IN  THE  CIVIL  WAR 

habeas  corpus.  The  Constitution  goes  no  further.  It  does  not 
say  after  a  writ  of  habeas  corpus  is  denied  a  citizen,  that  he 
shall  be  tried  otherwise  than  by  the  course  of  the  common  law; 
if  it  had  intended  this  result,  it  was  easy  by  the  use  of  direct 
words  to  have  accomplished  it.  The  illustrious  men  who 
framed  that  instrument  were  guarding  the  foundations  of  civil 
liberty  against  the  abuses  of  unlimited  power;  they  were  full  of 
wisdom,  and  the  lessons  of  history  informed  them  that  a  trial 
by  an  established  court,  assisted  by  an  impartial  jury,  was 
the  only  sure  way  of  protecting  the  citizen  against  oppression 
and  wrong.  Knowing  this,  they  limited  the  suspension  to  one 
great  right,  and  left  the  rest  to  remain  forever  inviolable.  But, 
it  is  insisted  that  the  safety  of  the  country  in  time  of  war  de- 
mands that  this  broad  claim  for  martial  law  shall  be  sustained. 
If  this  were  true,  it  could  be  well  said  that  a  country,  preserved 
at  the  sacrifice  of  all  the  cardinal  principles  of  liberty,  is  not 
worth  the  cost  of  preservation.  Happily,  it  is  not  so. 

It  will  be  borne  in  mind  that  this  is  not  a  question  of  the 
power  to  proclaim  martial  law,  when  war  exists  in  a  community 
and  the  courts  and  civil  authorities  are  overthrown.  Nor  is  it 
a  question  what  rule  a  military  commander,  at  the  head  of  his 
army,  can  impose  on  States  in  rebellion  to  cripple  their  re- 
sources and  quell  the  insurrection.  The  jurisdiction  claimed  is 
much  more  extensive.  The  necessities  of  the  service,  during 
the  late  Rebellion,  required  that  the  loyal  States  should  be 
placed  within  the  limits  of  certain  military  districts  and  com- 
manders appointed  in  them;  and,  it  is  urged,  that  this,  in  a 
military  sense,  constituted  them  the  theatre  of  military  opera- 
tions; and,  as  in  this  case,  Indiana  had  been  and  was  again 
threatened  with  invasion  by  the  enemy,  the  occasion  was  fur- 
nished to  establish  martial  law.  The  conclusion  does  not  follow 
from  the  premises.  If  armies  were  collected  in  Indiana,  they 
were  to  be  employed  in  another  locality,  where  the  laws  were 
obstructed  and  the  national  authority  disputed.  On  her  soil 
there  was  no  hostile  foot;  if  once  invaded,  that  invasion  was  at 
an  end,  and  with  it  all  pretext  for  martial  law.  Martial  law 
cannot  arise  from  a  threatened  invasion.   The  necessity  must 


MARTIAL  LAW  AND  CONSTITLTION  499 

be  actual  and  present;  the  invasion  real,  such  as  effectually 
closes  the  courts  and  deposes  the  civil  administration. 

It  is  difficult  to  see  how  the  safety  of  the  country  required 
martial  law  in  Indiana.  If  any  of  her  citizens  were  plotting 
treason,  the  power  of  arrest  could  secure  them,  until  the  govern- 
ment was  prepared  for  their  trial,  when  the  courts  were  open  and 
ready  to  try  them.  It  was  as  easy  to  protect  witnesses  before 
a  civil  as  a  military  tribunal;  and  as  there  could  be  no  wish  to 
convict,  except  on  sufficient  legal  evidence,  surely  an  ordained 
and  estabhshed  court  was  better  able  to  judge  of  this  than  a 
military  tribunal  composed  of  gentlemen  not  trained  to  the 
profession  of  the  law. 

It  follows,  from  what  has  been  said  on  this  subject,  that  there 
are  occasions  when  martial  rule  can  be  properly  applied.  If,  in 
foreign  invasion  or  civil  war,  the  courts  are  actually  closed,  and 
it  is  impossible  to  administer  criminal  justice  according  to  law, 
then,  on  the  theatre  of  active  mihtary  operations,  where  war 
really  prevails,  there  is  a  necessity  to  furnish  a  substitute  for 
the  civil  authority,  thus  overthrown,  to  preserve  the  safety  of 
the  army  and  society;  and  as  no  power  is  left  but  the  mihtary, 
it  is  allowed  to  govern  by  martial  rule  until  the  laws  can  have 
their  free  course.  As  necessity  creates  the  rule,  so  it  limits  its 
duration;  for,  if  this  government  is  continued  after  the  courts 
are  reinstated,  it  is  a  gross  usurpation  of  power.  Martial  rule 
can  never  exist  where  the  courts  are  open,  and  in  the  proper 
and  unobstructed  exercise  of  their  jurisdiction.  It  is  also  con- 
fined to  the  locality  of  actual  war.  .  .  . 


CHAPTER  LIV 

EMANCIPATION 

The  evolution  of  the  policy  of  the  administration  in  dealing  with  rights 
of  property  in  slaves  may  be  traced  by  the  following  selections.  Regarding 
the  Emancipation  Proclamation,  it  has  been  said  trenchantly  that,  "as 
indicating  the  definitive  adoption  by  the  Executive  of  a  radical  policy 
on  a  vital  issue,  the  proclamation  was  of  the  highest  importance;  but  it 
did  not  strike  the  shackles  from  a  single  slave."  The  legal  status  of  the 
freedmen  was  not  established  until  the  adoption  of  the  Thirteenth  Amend- 
ment. In  the  course  of  its  opinion  in  the  Slaughter-House  Cases,  the 
Supreme  Court  gave  a  definitive  interpretation  to  this  amendment. 

i6i.  Contraband  of  War} 

The  important  question  of  the  proper  disposition  to  be  made 
of  fugitives  from  service  in  States  in  insurrection  against  the 
Federal  Government,  to  which  you  have  again  directed  my 
attention  in  your  letter  of  July  30,  has  received  my  most  atten- 
tive consideration. 

It  is  the  desire  of  the  President  that  all  existing  rights,  in  all 
the  States,  be  fully  respected  and  maintained.  The  war  now 
prosecuted  on  the  part  of  the  Federal  Gk)vemment  is  a  war  for 
the  Union,  and  for  the  preservation  of  all  constitutional  rights 
of  States,  and  the  citizens  of  the  States,  in  the  Union.  Hence 
no  question  can  arise  as  to  fugitives  from  service  within  the 
States  and  Territories  in  which  the  authority  of  the  Union  is 
fully  acknowledged.  The  ordinary  forms  of  judicial  proceed- 
ing, which  must  be  respected  by  military  and  civil  authorities 
alike,  will  suffice  for  the  enforcement  of  all  legal  claims.  But  in 
States  wholly  or  partially  under  insurrectionary-  control,  where 
the  laws  of  the  United  States  are  so  far  opposed  and  resisted 
that  they  cannot  be  effectually  enforced,  it  is  obvious  that 
rights  dependent  on  the  execution  of  those  laws  must,  tempor- 
arily, fail;  and  it  is  equally  obvious  that  rights  dependent  on 

*  Secretary  of  War  to  General  Butler,  August  8,  1861.  McPherson, 
Political  History  oj  the  United  States  during  the  Great  Rebellion,  245. 


EMANCIPATION  501 

the  laws  of  the  States  within  which  military  operations  are 
conducted  must  be  necessarily  subordinated  to  the  military 
exigencies  created  by  the  insurrection,  if  not  wholly  forfeited 
by  the  treasonable  conduct  of  parties  claiming  them.  To  this 
general  rule  rights  to  services  can  form  no  exception. 

The  act  of  Congress  approved  August  6,  1861,  declares  that 
if  persons  held  to  service  shall  be  employed  in  hostility  to  the 
United  States,  the  right  to  their  services  shall  be  forfeited, 
and  such  persons  shall  be  discharged  therefrom.  It  follows 
of  necessity  that  no  claim  can  be  recognized  by  the  military 
authorities  of  the  Union  to  the  services  of  such  persons  when 
fugitives. 

A  more  difficult  question  is  presented  in  respect  to  persons 
escaping  from  the  service  of  loyal  masters.  It  is  quite  apparent 
that  the  laws  of  the  State,  under  which  only  the  services  of  such 
fugitives  can  be  claimed,  must  needs  be  wholly,  or  almost 
wholly,  suspended,  as  to  remedies,  by  the  insurrection  and  the 
mihtary  measures  necessitated  by  it.  And  it  is  equally  apparent 
that  the  substitution  of  mihtary  for  judicial  measures  for  the 
enforcement  of  such  claims  must  be  attended  by  great  incon- 
veniences, embarrassments,  and  injuries. 

Under  these  circumstances  it  seems  quite  clear  that  the 
substantial  rights  of  loyal  masters  will  be  best  protected  by 
receiving  such  fugitives,  as  well  as  fugitives  from  disloyal 
masters,  into  the  ser\'ice  of  the  United  States,  and  employing 
them  under  such  orga,nizations  and  in  such  occupations  as 
circumstances  may  suggest  or  require.  Of  course  a  record 
should  be  kept  showing  the  name  and  description  of  the  fugi- 
tives, the  name  and  the  character,  as  loyal  or  disloyal,  of  the 
master,  and  such  facts  as  may  be  necessary  to  a  correct  under- 
standing of  the  circumstances  of  each  case  after  tranquiiUty 
shall  have  been  restored.  Upon  the  return  of  peace,  Congress 
will,  doubtless,  properly  provide  for  all  the  persons  thus 
received  into  the  service  of  the  Union,  and  for  just  compensa- 
tion to  loyal  masters.  In  this  way  only,  it  would  seem,  can  the 
duty  and  the  safety  of  the  Government  and  the  just  rights  of 
all  be  fully  reconciled  and  harmonized. 


502    CONSTITUTION  IN  THE  CIVIL  WAR 

You  will  therefore  consider  yourself  as  instructed  to  govern 
your  future  action,  in  respect  to  fugitives  from  service,  by  the 
principles  herein  stated,  and  you  will  report  from  time  to  time, 
and  at  least  twice  in  each  month,  your  action  in  the  premises 
to  this  Department.  You  will,  however,  neither  authorize  nor 
permit  any  interference,  by  the  troops  under  your  command, 
with  the  servants  of  peaceful  citizens  in  house  or  field ;  nor  will 
you,  in  any  way,  encourage  such  servants  to  leave  the  lawful 
service  of  their  masters;  nor  will  you,  except  in  cases  where 
the  public  safety  may  seem  to  require,  prevent  the  voluntary 
return  of  any  fugitive  to  the  service  from  which  he  may  have 
escaped. 

162.  Forfeiture  of  Slaves} 

.  .  .  It  is  also  provided  that  the  slaves  of  persons  convicted 
under  these  sections  shall  be  free.  I  think  there  is  an  unfor- 
tunate form  of  expression,  rather  than  a  substantial  objection, 
in  this.  It  is  startling  to  say  that  Congress  can  free  a  slave 
within  a  State,  and  yet  if  it  were  said  that  the  ownership  of 
the  slave  had  first  been  transferred  to  the  nation,  and  Congress 
had  then  liberated  him,  the  difficulty  would  at  once  vanish. 
And  this  is  the  real  case.  The  traitor  against  the  General  Gov- 
ernment forfeits  his  slave  at  least  as  justly  as  he  does  any  other 
property;  and  he  forfeits  both  to  the  Government  against  which 
he  offends.  The  Government,  so  far  as  there  can  be  owner- 
ship, thus  owns  the  forfeited  slaves,  and  the  question  for  Con- 
gress in  regard  to  them  is,  "shall  they  be  made  free  or  sold  to 
new  masters?"  I  perceive  no  objection  to  Congress  deciding 
in  advance  that  they  shall  be  free.  To  the  high  honor  of  Ken- 
tucky, as  I  am  informed,  she  has  been  the  owner  of  some  slaves 
by  escheat,  and  has  sold  none,  but  liberated  all.  I  hope  the  same 
is  true  of  some  other  States.  Indeed,  I  do  not  believe  it  will  be 
physically  possible  for  the  General  Government  to  return  per- 
sons so  circumstanced  to  actual  slavery.  I  beheve  there  would 

1  Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  85-86.  \'eto 
message  on  the  Confiscation  Bill.  President  Lincoln  concluded  to  approve 
the  bill,  but  sent  to  Congress,  July  17,  1862,  a  copy  of  the  veto  message 
which  he  had  drafted. 


EMANCIPATION  503 

be  physical  resistance  to  it,  which  could  neither  be  turned  aside 
by  argument  nor  driven  away  by  force.  In  this  view  I  have 
no  objection  to  this  feature  of  the  bill.  .  .  . 

163.  Power  of  the  President  to  Emancipate  Slaves.^ 

The  liberation  of  slaves  is  looked  upon  as  a  means  of  embar- 
rassing or  weakening  the  enemy,  or  of  strengthening  the  mili- 
tary power  of  our  army.  If  slaves  be  treated  as  contraband  of 
war,  on  the  ground  that  they  may  be  used  by  their  masters  to 
aid  in  prosecuting  war,  as  employees  upon  military  works,  or  as 
laborers  furnishing  by  their  industry  the  means  of  carrying  on 
hostilities;  or  if  they  be  treated  as,  in  law,  belligerents,  following 
the  legal  condition  of  their  owners ;  or  if  they  be  deemed  lo}  al 
subjects  having  a  just  claim  upon  the  government  to  be  released 
from  their  obligations  to  give  aid  and  service  to  disloyal  and 
belHgerent  masters,  in  order  that  they  may  be  free  to  perform 
their  higher  duty  of  allegiance  and  loyalty  to  the  United 
States ;  or  if  they  be  regarded  as  subjects  of  the  United  States, 
liable  to  do  military  duty ;  or  if  they  I  >e  made  citizens  of  the 
United  States,  and  soldiers;  or  if  the  authority  of  the  masters 
over  their  slaves  is  the  means  of  aiding  and  comforting  the 
enemy,  or  of  throwing  impediments  in  the  way  of  the  govern- 
ment, or  depriving  it  of  such  aid  and  assistance  in  successful 
prosecution  of  the  war,  as  slaves  would  and  could  afford,  if 
released  from  the  control  of  the  enemy,  —  or  if  releasing  the 
slaves  would  embarrass  the  enemy,  and  make  it  more  difficult 
for  them  to  collect  and  maintain  large  armies;  in  either  of  these 
cases,  the  taking  away  of  these  slaves  from  the  "aid  and  ser- 
vice" of  the  enemy,  and  putting  them  to  the  aid  and  service 
of  the  United  States,  is  justifiable  as  an  act  of  war.  The  ordin- 
ary way  of  depriving  the  enemy  of  slaves  is  by  declaring  eman- 
cipation. .  .  . 

The  Constitution  confers  on  the  Executive,  when  in  actual 
war,  full  belHgerent  powers.  The  emancipation  of  enemy's 
slaves  is  a  belligerent  right.    It  belongs  exclusively  to  the 

1  Whiting,  War  Powers  of  the  President  (1862),  66-68  passim.  The 
author  was  solicitor-general  in  the  War  Department. 


504    CONSTITUTION  IN  THE  CIVIL  WAR 

President,  as  commander-in-chief,  to  judge  whether  he  shall 
exercise  his  belligerent  right  to  emancipate  slaves  in  those 
parts  of  the  country  which  are  in  rebellion.  If  exercised  in  fact, 
and  while  the  war  lasts,  his  act  of  emancipation  is  conclusive 
and  binding  forever  on  all  the  departments  of  government, 
and  on  all  persons  whatsoever.  .  .  . 

164.  Emancipation  Proclamation} 

WHEREAS,  on  the  twenty-second  day  of  September,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  sixty-two, 
a  proclamation  was  issued  by  the  President  of  the  United 
States,  containing,  among  other  things,  the  following,  to  wit: 

"That,  on  the  first  day  of  January,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  sixty-three,  all  persons 
held  as  slaves  within  any  state  or  designated  part  of  a  state, 
the  people  whereof  shall  then  ^e  in  rebellion  against  the 
United  States,  shall  be  then,  thenceforward,  and  forever,  free; 
and  the  Executive  Government  of  the  United  States,  including 
the  military  and  naval  authority  thereof,  will  recognize  and 
maintain  the  freedom  of  such  persons,  and  will  do  no  act  or 
acts  to  repress  such  persons,  or  any  of  them,  in  any  efforts  they 
may  make  for  their  actual  freedom. 

"That  the  Executive  will,  on  the  first  day  of  January  afore- 
said, by  proclamation,  designate  the  states  and  parts  of  states, 
if  any,  in  which  the  people  thereof,  respectively,  shall  then  be 
in  rebelhon  against  the  United  States;  and  the  fact  that  any 
state,  or  the  people  thereof,  shall  on  that  day  be  in  good  faith 
represented  in  the  Congress  of  the  United  States,  by  members 
chosen  thereto  at  elections  wherein  a  majority  of  the  quahfied 
voters  of  such  states  shall  have  participated,  shall,  in  the 
absence  of  strong  countervailing  testimony,  be  deemed  con- 
clusive evidence  that  such  state,  and  the  people  thereof,  are 
not  then  in  rebellion  agamst  the  United  States." 

Now,  therefore,  I,  ABRAHAM  LINCOLN,  President  of  the 
United  States,  by  virtue  of  the  power  in  me  vested  as  com- 
mander-in-chief of  the  army  and  navy  of  the  United  States,  in 
^  United  States  Stalutes^l  Large,  xn,  1268-69.  January  i,  1863. 


EMANCIPATION  505 

time  of  actual  armed  rebellion  against  the  authority  and 
Government  of  the  United  States,  and  as  a  fit  and  necessary- 
war  measure  for  suppressing  said  rebellion,  do,  on  this  first  day 
of  January,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  sixty-three,  and  in  accordance  with  my  purpose  so  to  do, 
publicly  proclaimed  for  the  full  period  of  one  hundred  days 
from  the  day  first  above  mentioned,  order  and  designate  as  the 
states  and  parts  of  states  wherein  the  people  thereof,  respect- 
ively, are  this  day  in  rebellion  against  the  United  States,  the 
following,  to  wit: 

Arkansas,  Texas,  Louisiana,  (except  the  parishes  of  St. 
Bernard,  Plaquemines,  Jefferson,  St.  John,  St.  Charles,  St. 
James,  Ascension,  Assumption,  Terre  Bonne,  Lafourche,  St. 
Mary,  St.  Martin,  and  Orleans,  including  the  city  of  New 
Orleans,)  Mississippi,  Alabama,  Florida,  Georgia,  South 
CaroHna,  North  CaroHna,  and  Virginia,  (except  the  forty-eight 
counties  designated  as  West  Virginia,  and  also  the  counties  of 
Berkeley,  Accomac,  Northampton,  EKzabeth  City,  York, 
Princess  Ann,  and  Norfolk,  including  the  cities  of  Norfolk  and 
Portsmouth.)  and  which  excepted  parts  are  for  the  present  left 
precisely  as  if  this  proclamation  were  not  issued. 

And  by  virtue  of  the  power  and  for  the  purpose  aforesaid, 
I  do  order  and  declare  that  all  persons  held  as  slaves  within 
said  designated  states  and  parts  of  states  are,  and  hencefor- 
ward shall  be,  free;  and  that  the  Executive  Government  of  the 
United  States,  including  the  mihtary  and  naval  authorities 
thereof,  will  recognize  and  maintain  the  freedom  of  said 
persons. 

And  I  hereby  enjoin  upon  the  people  so  declared  to  be  free 
to  abstain  from  all  violence,  unless  in  necessary  self-defence; 
and  I  recommend  to  them  that,  in  all  cases  when  allowed,  they 
labor  faithfully  for  reasonable  wages. 

And  I  further  declare  and  make  known  that  such  persons, 
of  suitable  condition,  will  be  received  into  the  armed  service 
of  the  United  States  to  garrison  forts,  positions,  stations,  and 
other  places,  and  to  man  vessels  of  all  sorts  in  said  service. 

And  upon  this  act,  sincerely  beheved  to  be  an  act  of  justice, 


5o6    CONSTITUTION  IN  THE  CIVIL  WAR 

warranted  by  the  Constitution  upon  military  necessity,  I 
invoke  the  considerate  judgment  of  mankind  and  the  gracious 
favor  of  Ahnighty  God. 


165.  Resolution  of  Congress  freeing  Soldiers'  Families.^ 

Resolved  .  •  .  ,  That,  for  the  purpose  of  encouraging  enlist- 
ments and  promoting  the  efficiency  of  the  miUtary  and  naval 
forces  of  the  United  States,  it  is  hereby  enacted  that  the  wife 
and  children,  if  any  he  have,  of  any  person  that  has  been,  or 
may  be,  mustered  into  the  mihtary  or  naval  service  of  the 
United  States,  shall,  from  and  after  the  passage  of  this  act, 
be  forever  free,  any  law,  usage,  or  custom  whatsoever  to  the 
contrary  notwithstanding.  .  .  . 

166.  The  Thirteenth  Amendment.^ 
ARTICLE  xm 

Section  i.  Neither  slavery  nor  involuntary  ser\'itude,  ex- 
cept as  a  punishment  for  crime  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United  States  or  any 
place  subject  to  their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 

167.  Judicial  Interpretation  of  the  Thirteenth  Amendment} 

.  .  .  The  institution  of  African  slavery,  as  it  existed  in  about 
half  the  States  of  the  Union,  and  the  contests  pervading  the 
public  mind  for  many  years,  between  those  who  desired  its  cur- 
tailment and  ultimate  extinction  and  those  who  desired  addi- 
tional safeguards  for  its  security  and  perpetuation,  cuhninated 
in  the  effort,  on  the  part  of  most  of  the  States  in  which  slavery 
existed,  to  separate  from  the  Federal  government,  and  to  resist 
its  authority.   This  constituted  the  war  of  the  rebelUon,  and 

^  United  States  Statutes  at  Large,  xni,  571.   March  3,  1865. 
"^  This  amendment  went  into  effect  December  18, 1865.  Revised  Statutes 
of  the  United  States  (1878),  30. 
^  Slaughter-House  Cases,  1873.   16  Wallace,  36. 


EMANCIPATION  507 

whatever  auxiliary  causes  may  have  contributed  to  bring  about 
this  war,  undoubtedly  the  overshadowing  and  efficient  cause 
was  African  slavery. 

In  that  struggle  slavery,  as  a  legalized  social  relation,  per- 
ished. It  perished  as  a  necessity  of  the  bitterness  and  force  of 
the  conflict.  When  the  armies  of  freedom  found  themselves 
upon  the  soil -of  slavery  they  could  do  nothing  less  than  free 
the  poor  victims  whose  enforced  servitude  was  the  foundation 
cf  the  quarrel.  And  when  hard  pressed  in  the  contest  these  men 
(for  they  proved  themselves  men  in  that  terrible  crisis)  offered 
their  services  and  were  accepted  by  thousands  to  aid  in  sup- 
pressing the  unlawful  rebellion,  slavery  was  at  an  end  wherever 
the  Federal  government  succeeded  in  that  purpose.  The  pro- 
clamation of  President  Lincoln  expressed  an  accomplished  fact 
as  to  a  large  portion  of  the  insurrectionary  districts,  when  he 
declared  slavery  abolished  in  them  all.  But  the  war  being  over, 
those  who  had  succeeded  in  re-establishing  the  authority  of 
the  Federal  government  were  not  content  to  permit  this  great 
act  of  emancipation  to  rest  on  the  actual  results  of  the  contest 
or  the  proclamation  of  the  Executive,  both  of  which  might 
have  been  questioned  in  after  times,  and  they  determined  to 
place  this  main  and  most  valuable  result  in  the  Constitution 
of  the  restored  Union  as  one  of  its  fundamental  articles.  Hence 
the  thirteenth  article  of  amendment  of  that  instrument.  Its  two 
short  sections  seem  hardly  to  admit  of  construction,  so  vigorous 
is  their  expression  and  so  appropriate  to  the  purpose  we  have 
indicated.  .  .  . 

To  withdraw  the  mind  from  the  contemplation  of  this  grand 
yet  simple  declaration  of  the  personal  freedom  of  all  the  human 
race  within  the  jurisdiction  of  this  government  —  a  declaration 
designed  to  establish  the  freedom  of  four  milhon  of  slaves  — 
and  with  a  microscopic  search  endeavoi  to  find  in  it  a  reference 
to  servitudes,  which  may  have  been  attached  to  propeity  in 
certain  localities,  requires  an  effort,  to  say  the  least  of  it. 

That  a  personal  servitude  was  meant  is  proved  by  the  use  of 
the  word  "involuntary,"  which  can  only  apply  to  human 
beings.  The  exception  of  servitude  as  a  punishment  for  crime 


5o8    CONSTITUTION  IN  THE  CIVIL  WAR 

gives  an  idea  of  the  class  of  servitude  that  is  meant.  The  word 
"servitude"  is  of  larger  meaning  than  slaver}^  as  the  latter  is 
popularly  understood  in  this  country,  and  the  obvious  purpose 
was  to  forbid  all  shades  and  conditions  of  African  slavery.  It 
was  very  well  understood  that  in  the  form  of  apprenticeship 
for  long  terms,  as  it  had  been  practiced  in  the  West  India 
Islands,  on  the  abolition  of  slavery  by  the  English  government, 
or  by  reducing  the  slaves  to  the  condition  of  serfs  attached  to 
the  plantation,  the  purpose  of  the  article  might  have  been 
evaded,  if  only  the  word  "slavery"  had  been  used.  .  .  . 


I 


PART   NINE.    THE    RECONSTRUCTION   OF 
THE   UNION 

CHAPTER  LV 

PRESIDENTIAL    RESTORATION 

The  triumph  of  the  Union  armies  settled,  so  far  as  might  can  settle  a 
question  of  right,  the  vexing  question  of  national  versus  state  sovereignt}'. 
Secession  had  been  tried  and  had  failed.  The  doctrine  of  state  sovereignty 
could  no  longer  be  upheld  as  a  constitutional  principle.  But  among  the 
questions  which  the  war  did  not  and  could  not  settle  was  the  extent  of 
the  rights  in  the  Union  of  the  States  which  had  rebelled.  Avoiding  the 
theoretical  aspects  of  the  problem,  President  Lincoln  sought  to  effect 
a  direct  and  simple  restoration  of  the  States  upon  the  same  principles 
which  he  had  adopted  at  the  beginning  of  the  war.  President  Johnson 
continued  the  work  of  restoration  on  much  the  same  theory. 

i68.  President  Lincoln'' s  Proclamation  of  Amnesty} 

Whereas  .  .  . 

Therefore,  I,  Abraham  Lincoln,  President  of  the  United 
States,  do  proclaim,  declare,  and  make  known  to  all  persons 
who  have,  directly  or  by  implication,  participated  in  the  exist- 
ing rebellion,  except  as  hereinafter  excepted,  that  a  full  pardon 
is  hereby  granted  to  them  and  each  of  them,  with  restoration 
of  all  rights  of  property,  except  as  to  slaves  and  in  property 
cases  where  rights  of  third  parties  shall  have  intervened,  and 
upon  the  condition  that  every  such  person  shall  take  and  sub- 
scribe an  oath  and  thenceforward  keep  and  maintain  said  oath  - 
inviolate,  and  which  oath  shall  be  registered  for  permanent 
preservation  and  shall  be  of  the  tenor  and  effect  following,  to 
wit: 

I, ,  do  solemnly  sv/ear,  in  presence  of  Almighty  God, 

that  I  will  henceforth  faithfully  support,  protect,  and  defend  the  i 
Constitution  of  the  United  States,  and  the  Union  of  the  States 

'  Decembers,  1863.  'Richa.rdson,  Messages  and  Papers  of  the  Presidents, 
VI,  213-15. 


(> 


510    RECONSTRUCTION  OF  THE  UNION 

thereunder;  and  that  I  will  in  like  manner  abide  by  and  faithfully 
support  all  acts  of  Congress  passed  during  the  existing  rebellion 
with  reference  to  slaves,  so  long  and  so  far  as  not  repealed,  modi- 
fied, or  held  void  by  Congress  or  by  decision  of  the  Supreme  Court; 
and  that  I  will  in  like  manner  abide  by  and  faithfully  support  all 
proclamations  of  the  President  during  the  existing  rebellion  having 
reference  to  slaves,  so  long  and  so  far  as  not  modified  or  declared 
void  by  decision  of  the  Supreme  Court.   So  help  me  God. 

The  persons  excepted  from  the  benefits  of  the  foregoing 
provisions  are  all  who  are  or  shall  have  been  cixil  or  diplomatic 
officers  or  agents  of  the  so-called  Confederate  Government;  all 
who  have  left  judicial  stations  under  the  United  States  to  aid 
the  rebellion;  all  who  are  or  shall  have  been  military  or  naval 
officers  of  said  so-called  Confederate  Government  above  the 
rank  of  colonel  in  the  army  or  of  lieutenant  in  the  navy;  all  who 
left  seats  in  the  United  States  Congress  to  aid  the  rebellion;  all 
who  resigned  commissions  in  the  Army  or  Navy  of  the  United 
States  and  afterwards  aided  the  rebellion;  and  all  who  have 
engaged  in  any  way  in  treating  colored  persons,  or  white  per- 
sons in  charge  of  such,  otherwise  than  lawfully  as  prisoners  of 
war,  and  which  persons  may  have  been  found  in  the  United 
States  service  as  soldiers,  seamen,  or  in  any  other  capacity. 

And  I  do  further  proclaim,  and  make  known  that  whenever, 
in  any  of  the  States  of  Arkansas,  Texas,  Louisiana,  Mississippi, 
Tennessee,  Alabama,  Georgia,  Florida,  South  Carolina,  and 
North  Carolina,  a  number  of  persons,  not  less  than  one- tenth  in 
number  of  the  votes  cast  in  such  State  at  the  Presidential  elec- 
tion of  the  year  a.  d.  i860,  each  ha^ing  taken  the  oath  afore- 
said, and  not  having  since  violated  it,  and  being  a  qualified 
voter  by  the  election  law  of  the  State  existing  immediately 
before  the  so-called  act  of  secession,  and  excluding  all  others, 
shall  reestablish  a  State  government  which  shall  be  republican 
and  in  nowise  contravening  said  oath,  such  shall  be  recognized 
as  the  true  government  of  the  State,  and  the  State  shall  receive 
thereunder  the  benefits  of  the  constitutional  provision  which 
declares  that  "the  United  States  shall  guarantee  to  every  State 
in  this  Union  a  republican  form  of  government  and  shall  pro- 


PRESIDENTIAL  RESTORATION         511 

tect  each  of  them  against  invasion,  and,  on  application  of  the 
legislature,  or  the  executive  (when  the  legislature  can  not  be 
convened),  against  domestic  violence." 

And  I  do  further  proclaim,  declare,  and  make  known  that 
any  provision  which  may  be  adopted  by  such  State  govern- 
m.ent  in  relation  to  the  freed  people  of  such  State  which  shall 
recognize  and  declare  their  permanent  freedom,  provide  for 
their  education,  and  which  may  yet  be  consistent  as  a  tempo- 
rary arrangement  with  their  present  condition  as  a  laboring, 
landless,  and  homeless  class,  will  not  be  objected  to  by  the 
National  Executive. 

And  it  is  suggested  as  not  improper  that  in  constructing 
a  loyal  State  government  in  any  State  the  name  of  the  State, 
the  boundary,  the  subdivisions,  the  constitution,  and  the  gen- 
eral code  of  laws  as  before  the  rebellion  be  maintained,  subject 
only  to  the  modifications  made  necessary  by  the  conditions 
hereinbefore  stated,  and  such  others,  if  any,  not  contravening 
said  conditions  and  which  may  be  deemed  expedient  by  those 
framing  the  new  State  Government. 

To  avoid  misunderstanding,  it  may  be  proper  to  say  that 
this  proclamation,  so  far  as  it  relates  to  State  governments,  has 
no  reference  to  States  wherein  loyal  State  governments  have 
all  the  while  been  maintained.  And  for  the  same  reason  it  may 
be  proper  to  further  say  that  whether  members  sent  to  Con- 
gress from  any  State  shall  be  admitted  to  seats  constitutionally 
rests  exclusively  with  the  respective  Houses,  and  not  to  any 
extent  with  the  Executive.  And,  still  further,  that  this  procla- 
mation is  intended  to  present  the  people  of  the  States  wherein 
the  national  authority  has  been  suspended  and  loyal  State 
governments  have  been  subverted  a  mode  in  and  by  which  the 
national  authority  and  loyal  State  governments  may  be  re- 
estabhshed  within  said  States  or  in  any  of  them;  and  while  the 
mode  presented  is  the  best  the  Executive  can  suggest,  with  his 
present  impressions,  it  must  not  be  understood  that  no  other 
possible  mode  would  be  acceptable.  .  .  . 


512    RECONSTRUCTION  OF  THE  UNION 

169.  Last  Speech  of  President  Lincoln} 
We  all  agree  that  the  seceded  States,  so  called,  are  out  of 
their  proper  practical  relation  with  the  Union,  and  that  the  sole 
object  of  the  Government,  civil  and  military,  in  regard  to  those 
States  is  to  again  get  them  into  that  proper  practical  relation.  I 
believe  that  it  is  not  only  possible,  but  in  fact  easier,  to  do  this 
without  deciding  or  even  considering  whether  these  States  have 
ever  been  out  of  the  Union,  than  with  it.  Finding  themselves 
safely  at  hom.e,  it  would  be  utterly  immaterial  whether  they 
had  ever  been  abroad.  Let  us  all  join  in  doing  the  acts  neces- 
sary to  restore  the  proper  practical  relations  between  these 
States  and  the  Union,  and  each  forever  after  innocently  indulge 
his  own  opinion  whether  in  doing  the  acts  he  brought  the  States 
from  without  into  the  Union,  or  only  gave  them  proper  assist- 
ance, they  never  having  been  out  of  it.  .  .  . 

1 70.  A  ppointment  of  a  Provisional  Governor  for  North  Carolina} 

Whereas  the  fourth  section  of  the  fourth  article  of  the  Con- 
stitution of  the  United  States  declares  that  the  United  States 
shall  guarantee  to  every  State  in  the  Union  a  republican  form  of 
government  and  shall  protect  each  of  them  against  invasion 
and  domestic  violence;  and 

Whereas  the  President  of  the  United  States  is  by  the  Con- 
stitution made  Commander  in  Chief  of  the  Army  and  Navy,  as 
well  as  chief  civil  executive  officer  of  the  United  States,  and  is 
bound  by  solemn  oath  faithfully  to  execute  the  office  of  Presi- 
dent of  the  United  States  and  to  take  care  that  the  laws  be 
faithfully  executed ;  and 

Whereas  the  rebellion  which  has  been  waged  by  a  portion  of 
the  people  of  the  United  States  against  the  properly  constituted 
authorities  of  the  Government  thereof  in  the  most  violent  and 
revolting  form,  but  whose  organized  and  armed  forces  have 
now  been  almost  entirely  overcome,  has  in  its  revolutionary 

'  April  II,  1865.  Kicholsiy  a.nA'H.z.y,  Complete  Works  of  Lincoln, -n^tT  2. 
^  May  29,  1865.  Richardson,  Messages  and  Papers  of  the  Presidents,  vi, 
312-14. 


PRESIDENTIAL  RESTORATION        513 

progress  deprived  the  people  of  the  State  of  North  Carolina  of 
all  civil  government ;  and 

Whereas  it  becomes  necessary  and  proper  to  carry  out  and 
enforce  the  obligations  of  the  United  States  to  the  people  of 
North  CaroHna  in  securing  them  in  the  enjoyment  of  a  republi- 
can form  of  government : 

Now,  therefore,  in  obedience  to  the  high  and  solemn  duties 
imposed  upon  me  by  the  Constitution  of  the  United  States  and 
for  the  purpose  of  enabling  the  loyal  people  of  said  State  to     1 
organize  a  State  government  whereby  justice  may  be  estab- 
lished, domestic  tranquillity  insured,  and  loyal  citizens  pro- 
tected in  all  their  rights  of  life,  liberty,  and  property,  I,  Andrew     \^ 
Johnson,  President  of  the  United  States  and  Commander  in 
Chief  of  the  Army  and  Navy  of  the  United  States,  do  hereby 
appoint  William  W.  Holden  provisional  governor  of  the  State 
of  North  CaroUna,  whose  duty  it  shall  be,  at  the  earliest  prac- 
ticable period,  to  prescribe  such  rules  and  regulations  as  may  be 
necessary  and  proper  for  convening  a  convention  composed  of 
delegates  to  be  chosen  by  that  portion  of  the  people  of  said  1 
State  who  are  loyal  to  the  United  States,  and  no  others,  for  the 
purpose  of  altering  or  amending  the  constitution  thereof,  and 
with  authority  to  exercise  within  the  limits  of  said  State  all  the 
powers  necessary  and  proper  to  enable  such  loyal  people  of  the 
State  of  North  Carolina  to  restore  said  State  to  its  constitu- 
tional  relations  to  the  Federal  Government  and  to  present  such   | 
a  republican  form  of  State  government  as  will  entitle  the  State 
to  the  guaranty  of  the  United  States  therefor  and  its  people  to 
protection  by  the  United  States  against  invasion,  insurrection, 
and  domestic  violence:  Provided,  That  in  any  election  that 
may  hereafter  be  held  for  choosing  delegates  to  any  State  con- 
vention as  aforesaid  no  person  shall  be  quahfied  as  an  elector 
or  shall  be  eHgible  as  a  member  of  such  convention  unless  he    , 
shall  have  previously  taken  and  subscribed  the  oath  of  amnesty   ' 
as  set  forth  in  the  President's  proclamation  of  May  29,  a.  d.    ^ 
1865,  and  is  a  voter  qualified  as  prescribed  by  the  constitution 
and  laws  of  the  State  of  North  Carolina  in  force  immediately 
before  the  20th  day  of  May  a.  d.  1861 ,  the  date  of  the  so-called 


514    RECONSTRUCTION  OF  THE  UNION 

ordinance  of  secession ;  and  the  said  convention,  when  convened, 
or  the  legislature  that  may  be  thereafter  assembled,  will  pre- 
scribe the  qualification  of  electors  and  the  eligibihty  of  persons 
to  hold  ofiice  under  the  constitution  and  laws  of  the  State  —  a 
power  the  people  of  the  several  States  composing  the  Federal 
Union  have  rightfully  exercised  from  the  origin  of  the  Govern- 
ment to  the  present  time. 

And  I  do  hereby  direct  — 

First.  That  the  military  commander  of  the  department  and 
all  officers  and  persons  in  the  military  and  naval  ser\dce  aid  and 
assist  the  said  provisional  governor  in  carrying  into  effect  this 
proclamation;  and  they  are  enjoined  to  abstain  from  in  any 
way  hindering,  impeding,  or  discouraging  the  loyal  people  from 
the  organi^tion  of  a  State  government  as  herein  authorized. 

Second.  That  the  Secretary  of  State  proceed  to  put  in  force 
all  laws  of  the  United  States  the  administration  whereof  be- 
longs to  the  State  Department  applicable  to  the  geographical 
limits  aforesaid. 

Third.  That  the  Secretary  of  the  Treasury  proceed  to  nomi- 
nate for  appointment  assessors  of  taxes  and  collectors  of  cus- 
toms and  internal  revenue  and  such  other  officers  of  the  Treas- 
ury Department  as  are  authorized  by  law  and  put  in  execution 
the  revenue  laws  of  the  United  States  within  the  geographical 
limits  aforesaid.  In  making  appointments  the  preference  shall 
be  given  to  qualified  loyal  persons  residing  within  the  districts 
where  their  respective  duties  are  to  be  performed;  but  if  suit- 
able residents  of  the  district  shall  not  be  found,  then  persons 
residing  in  other  States  or  districts  shall  be  appointed. 

Fourth.  That  the  Postmaster- General  proceed  to  establish 
post-offices  and  post  routes  and  put  into  execution  the  postal 
laws  of  the  United  States  within  the  said  State,  giving  to  loyal 
residents  the  preference  of  appointment;  but  if  suitable  resi- 
dents are  not  found,  then  to  appoint  agents,  etc.,  from  other 
States. 

Fifth.  That  the  district  judge  for  the  judicial  district  in 
which  North  Carolina  is  included  proceed  to  hold  courts  within 
said  State  in  accordance  with  the  provisions  of  the  Act  of  Con- 


PRESIDENTIAL  RESTORATION        515 

gress.  The  Attorney- General  will  instruct  the  proper  ofl&cers  to 
hbel  and  bring  to  judgment,  confiscation,  and  sale  property 
subject  to  confiscation  and  enforce  the  administration  of  justice 
within  said  State  in  all  matters  within  the  cognizance  and  juris- 
diction of  the  Federal  courts. 

Sixth.  That  the  Secretary  of  the  Navy  take  possession  of  all 
pubHc  property  belonging  to  the  Navy  Department  within  said 
geographical  limits  and  put  in  operation  all  acts  of  Congress  in 
relation  to  naval  affairs  having  application  to  the  said  State. 

Seventh.  That  the  Secretary  of  the  Interior  put  in  force  the 
laws  relating  to  the  Interior  Department  appHcable  to  the 
geographical  limits  aforesaid.  .  .  . 

171.  First  Annual  Message  of  President  Johnson} 

The  Union  of  the  United  States  of  America  was  intended  by 
its  authors  to  last  as  long  as  the  States  themselves  shall  last. 
**  The  Union  shall  be  perpetual "  are  the  words  of  the  Confeder- 
ation. "To  form  a  more  perfect  Union,"  by  an  ordinance  of  the 
people  of  the  United  States,  is  the  declared  purpose  of  the 
Constitution.  .  .  . 

The  perpetuity  of  the  Constitution  brings  with  it  the  per- 
petuity of  the  States;  their  mutual  relation  makes  us  what  we 
are,  and  in  our  political  system  their  connection  is  indissoluble. 
The  whole  can  not  exist  without  the  parts,  nor  the  parts  with- 
out the  whole.  So  long  as  the  Constitution  of  the  United  Stat;-s 
endures,  the  States  will  endure.  The  destruction  of  the  one  is 
the  destruction  of  the  other ;  the  preservation  of  the  one  is  the 
preservation  of  the  other. 

I  have  thus  explained  my  views  of  the  mutual  relations  of  the 
Constitution  and  the  States,  because  they  unfold  the  principles 
on  which  I  have  sought  to  solve  the  momentous  questions  and 
overcome  the  appalHng  difficulties  that  met  me  at  the  very 
commencement  of  my  Administration.  .  .  . 

I  found  the  States  suffering  from  the  effects  of  a  civil  war. 
Resistance  to  the  General  Government  appeared  to  have  ex- 

'  December  4, 1865.  Richaxdson,  Messages  and  Papers  of  the  Presidents, 
VI,  353-58  passim. 


5i6    RECONSTRUCTION  OF  THE  UNION 

hausted  itself.  The  United  States  had  recovered  possession  of 
their  forts  and  arsenals,  and  their  armies  were  in  the  occupation 
of  every  State  which  had  attempted  to  secede.  Whether  the 
territory  withm  the  limits  of  those  States  should  be  held  as 
conquered  territory,  under  mihtary  authority  emanating  from 
the  President  as  the  head  of  the  Aimy,  was  the  first  question 
that  presented  itself  for  decision. 

Now  military  governments,  established  for  an  indefinite 
period,  would  have  offered  no  security  for  the  early  suppression 
of  discontent,  would  have  di\ided  the  people  into  the  vanquish- 
ers and  the  vanquished,  and  would  have  envenomed  hatred 
rather  than  have  restored  affection.  .  .  . 

Besides,  the  pohcy  of  mihtary  rule  over  a  conquered  territory 
S   1      would  have  imphed  that  the  States  whose  inhabitants  may 
\     have  taken  part  in  the  rebelhon  had  by  the  act  of  those  inhabi- 
tants ceased  to  exist.  But  the  true  theory  is  that  all  pretended 
— —  acts  of  secession  were  from  the  beginning  null  and  void.   The 
States  can  not  commit  treason  nor  screen  the  individual  citizens 
who  may  have  committed  treason  any  more  than  they  can 
make  valid  treaties  or  engage  in  lawful  commerce  with  any 
foreign  power.   The  States  attempting  to  secede  placed  them- 
selves ini  a  condition  where  their  vitality  was  impaired,  but  not 
-^  V  extinguished;  their  functions  suspended,  but  not  destroyed. 

But  if  any  State  neglects  or  refuses  to  perform  its  offices  there 
is  the  more  need  that  the  General  Government  should  maintain 
all  its  authority  and  as  soon  as  practicable  resume  the  exercise 
of  all  its  functions.  On  this  principle  I  have  acted,  and  have 
gradually  and  quietly,  and  by  almost  imperceptible  steps, 
sought  to  restore  the  rightful  energy  of  the  General  Govern- 
ment and  of  the  States.  To  that  end  provisional  governors  have 
been  appointed  for  the  States,  conventions  called,  governors 
elected,  legislatures  assembled,  and  Senators  and  Representa- 
tives chosen  to  the  Congress  of  the  United  States.  At  the  same 
time  the  courts  of  the  United  States,  as  far  as  could  be  done, 
have  been  reopened,  so  that  the  laws  of  the  United  States  may 
be  enforced  through  their  agency.  The  blockade  has  been  re- 
moved and  the  custom-houses  reestablished  in  the  ports  of 


PRESIDENTIAL  RESTORATION         517 

entry,  so  that  the  revenue  of  the  United  States  may  be  col- 
lected. The  Post-Office  Department  renews  its  ceaseless  activ- 
ity, and  the  General  Government  is  thereby  enabled  to  com- 
municate promptly  with  its  officers  and  agents.  The  courts 
bring  security  to  persons  and  property;  the  opening  of  the  ports 
invites  the  restoration  of  industry  and  commerce;  the  post- 
office  renews  the  faciUties  of  social  intercourse  and  of  busi- 
ness. .  .  . 

I  know  very  well  that  this  poHcy  is  attended  with  some  risk; 
that  for  its  success  it  requires  at  least  the  acquiescence  of  the 
States  which  it  concerns;  that  it  impHes  an  invitation  to  those 
States,  by  renewing  their  allegiance  to  the  United  States,  to 
resume  their  functions  as  States  of  the  Union.  But  it  is  a  risk 
that  must  be  taken.  In  the  choice  of  difficulties  it  is  the  small- 
est risk ;  and  to  diminish  and  if  possible  to  remove  all  danger,  I 
have  felt  it  incumbent  on  me  to  assert  one  other  power  of  the 
General  Government  —  the  power  of  pardon.  .  .  . 

The  next  step  which  I  have  taken  to  restore  the  constitu- 
tional relations  of  the  States  has  been  an  invitation  to  them  to 
participate  in  the  high  office  of  amending  the  Constitution.  .  .  . 

It  is  not  too  much  to  ask,  in  the  name  of  the  whole  people, 
that  on  the  one  side  the  plan  of  restoration  shall  proceed  in 
conformity  with  a  willingness  to  cast  the  disorders  of  the  past 
into  oblivion,  and  that  on  the  other  the  evidence  of  sincerity  in 
the  future  maintenance  of  the  Union  shall  be  put  beyond  any 
doubt  by  the  ratification  of  the  proposed  amendment  to  the 
Constitution,  which  provides  for  the  abolition  of  slavery  for- 
ever within  the  limits  of  our  country.  .  .  . 

The  amendment  to  the  Constitution  being  adopted,  it  would 
remain  for  the  States  whose  powers  have  been  so  long  in  abey- 
ance to  resume  their  places  in  the  two  branches  of  the  National 
Legislature,  and  thereby  complete  the  work  of  restoration. 
Here  it  is  for  you,  fellow-citizens  of  the  Senate,  and  for  you, 
fellow-citizens  of  the  House  of  Representatives,  to  judge,  each 
of  you  for  yourselves,  of  the  elections,  returns,  and  qualifica- 
tions of  your  own  members.  .  .  . 


CHAPTER  LVI 

ORIGIN    OF    THE    FOURTEENTH    AMENDMENT 

The  appointment  of  a  joint  committee  of  the  House  and  Senate,  to 
inquire  into  the  condition  of  the  States  lately  in  rebellion  and  to  report 
whether  any  of  them  was  entitled  to  representation  in  Congress,  was 
tantamount  to  a  declaration  that  Congress  would  not  recognize  the  state 
governments  which  had  been  restored  by  the  President.  The  enactment 
of  the  so-called  "black  codes"  by  these  Southern  legislatures  led  Congress 
to  frame  two  remedial  measures  —  the  Freedmen's  Bureau  Bill  and  the 
Civil  Rights  Bill.  Both  were  vetoed;  but  the  latter  was  passed  over  the 
veto.  On  the  last  day  of  April,  1866,  the  Joint  Committee  on  Reconstruc- 
tion laid  before  Congress  a  joint  resolution  proposing  a  fourteenth  amend- 
ment to  the  Constitution.  This  was  followed  on  June  18  by  an  elaborate 
report.  The  first  section  of  the  amendment  as  it  passed  the  House  was 
formulated  by  Bingham  of  Ohio:  the  first  clause,  defining  citizenship,  was 
added  by  the  Senate.  In  view  of  the  subsequent  interpretation  of  this 
important  section  by  the  Supreme  Court,  the  speeches  of  Bingham  and 
of  Howard,  who  championed  the  amendment  in  the  Senate,  are  of  much 
significance. 

172.  Report  oj  the  Joint  Committee  on  Reconstruction} 

Your  committee  came  to  the  consideration  of  the  subject 
referred  to  them  with  the  most  anxious  desire  to  ascertain  what 
was  the  condition  of  the  people  of  the  States  recently  in  insur- 
rection, and  what,  if  anything,  was  necessary  to  be  done  before 
restoring  them  to  the  full  enjo>Tnent  of  all  their  original  priv- 
ileges. It  was  undeniable  that  the  war  into  which  they  had 
plunged  the  country  had  materially  changed  their  relations  to 
the  people  of  the  loyal  States.  Slavery  had  been  abolished  by 
constitutional  amendment.  A  large  proportion  of  the  popula- 
tion had  become,  instead  of  mere  chattels,  free  men  and  citi- 
zens. Through  all  the  past  struggle  these  had  remained  true 
and  loyal,  and  had,  in  large  numbers,  fought  on  the  side  of  the 
Union.   It  was  impossible  to  abandon  them,  without  securing 

*  Report  of  the  Joint  Committee  on  Reconstruction,  June  18,  1866,  xin- 
XXI  passim. 


ORIGIN  OF  THE  XIV  AMENDMENT    519 

them  their  rights  as  free  men  and  citizens.  The  whole  civilized 
world  would  have  cried  out  against  such  base  ingratitude,  and 
the  bare  idea  is  offensive  to  all  right-thinking  men.  Hence  it 
became  important  to  inquire  what  could  be  done  to  secure  their 
rights,  civil  and  poHtical.  It  was  evident  to  your  committee 
that  adequate  security  could  only  be  found  in  appropriate  con- 
stitutional provisions.  By  an  original  provision  of  the  Consti- 
tution, representation  is  based  on  the  whole  number  of  free 
persons  in  each  State,  and  three-fifths  of  all  other  persons. 
When  all  become  free,  representation  for  all  necessarily  follows. 
As  a  consequence  the  inevitable  effect  of  the  rebelhon  would  be 
to  increase  the  poHtical  power  of  the  insurrectionary  States, 
whenever  they  should  be  allowed  to  resume  their  positions  as 
States  of  the  Union.  As  representation  is  by  the  Constitution 
based  upon  population,  your  committee  did  not  think  it  advis- 
able to  recommend  a  change  of  that  basis.  The  increase  ot 
representation  necessarily  resulting  from  the  abolition  of 
slavery  was  considered  the  most  important  element  in  the 
questions  arising  out  of  the  changed  condition  of  affairs,  and 
the  necessity  for  some  fundamental  action  in  this  regard 
seemed  imperative.  It  appeared  to  your  committee  that  the 
rights  of  these  persons  by  whom  the  basis  of  representation  had 
been  thus  increased  should  be  recognized  by  the  general  gov- 
ernment. While  slaves  they  were  not  considered  as  ha\'ing  any 
rights,  civil  or  political.  It  did  not  seem  just  or  proper  that  all 
the  political  advantages  derived  from  their  becoming  free 
should  be  confined  to  their  former  masters,  who  had  fought 
against  the  Union,  and  withheld  from  themselves,  who  had 
always  been  loyal.  Slavery,  by  building  up  a  ruling  and  domin- 
nant  class,  had  produced  a  spirit  of  oHgarchy  adverse  to  re- 
publican institutions,  which  finally  inaugurated  civil  war.  The 
tendency  of  continuing  the  domination  of  such  a  class,  by 
leaving  it  in  the  exclusive  possession  of  political  power,  would 
be  to  encourage  the  same  spirit,  and  lead  to  a  similar  result. 
Doubts  were  entertained  whether  Congress  had  power,  even 
under  the  amended  Constitution,  to  prescribe  the  quaHfications 
of  voters  in  a  State,  or  could  act  directly  on  the  subject.  It  was 


n- 


520    RECONSTRUCTION  OF  THE  UNION 

doubtful,  in  the  opinion  of  your  committee,  whether  the  States 
would  consent  to  surrender  a  power  they  had  always  exercised, 
and  to  which  they  were  attached.  As  the  best  if  not  the  only 
method  of  surmounting  the  difficulty,  and  as  eminently  just 
and  proper  in  itself,  your  committee  came  to  the  conclusion 
that  poHtical  power  should  be  possessed  in  all  the  States  exactly 
in  proportion  as  the  right  of  sufifrage  should  be  granted,  without 
distinction  of  color  or  race.  This  it  was  thought  would  leave 
the  whole  question  with  the  people  of  each  State,  holding  out 
to  all  the  advantage  of  increased  pohtical  power  as  an  induce- 
ment to  allow  all  to  participate  in  its  exercise.  Such  a  provision 
would  be  in  its  nature  gentle  and  persuasive,  and  would  lead,  it 
was  hoped,  at  no  distant  day,  to  an  equal  participation  of  all, 
without  distinction,  in  all  the  rights  and  privileges  of  citizen- 
ship, thus  affording  a  full  and  adequate  protection  to  all  classes 
of  citizens,  since  all  would  have,  through  the  ballot-box,  the 
power  of  self -protection.  .  .  . 

.  .  .  The  conclusion  of  your  committee  therefore  is,  that  the 
''so-called  Confederate  States  are  not,  at  present,  entitled  to 
\  representation  in  the  Congress  of  the  United  States;  that,  be- 
fore allowing  such  representation,  adequate  security  for  future 
peace  and  safety  should  be  required ;  that  this  can  only  be  found 
in  such  changes  of  the  organic  law  as  shall  determine  the  civil 
rights  and  privileges  of  all  citizens  in  all  parts  of  the  republic, 
shall  place  representation  on  an  equitable  basis,  shall  fix  a 
stigma  upon  treason,  and  protect  the  loyal  people  against  fu- 
ture claims  for  the  expenses  incurred  in  support  of  rebellion  and 
for  manumitted  slaves,  together  with  an  express  grant  of  power 
in  Congress  to  enforce  those  provisions.  To  this  end  they  offer 
a  joint  resolution  for  amending  the  Constitution  of  the  United 
States,  and  the  two  several  bills  designed  to  carry  the  same 
into  effect,  before  referred  to.  .  .  . 

173.  Representative  Bingham  on  the  Joint  Resolution.^ 

The  necessity  for  the  first  section  of  this  amendment  to  the 
Constitution,  Mr.  Speaker,  is  one  of  the  lessons  that  have  been 
^  ^  Congressional  Globe,  39  Cong.,  i  Sess.,  2542-43.  May  10,  1866. 


ORIGIN  OF  THE  XIV  AMENDMENT    521 

taught  to  your  committee  and  taught  to  all  the  people  of  this 
country  by  the  history  of  the  past  four  years  of  terrific  conflict 
—  that  history  in  which  God  is,  and  in  which  He  teaches  the 
profoundest  lessons  to  men  and  nations.  There  was  a  want 
hitherto,  and  there  remains  a  want  now,  in  the  Constitution  of 
our  country,  which  the  proposed  amendment  will  supply. 
What  is  that?  It  is  the  power  in  the  people,  the  whole  people  of 
the  United  States,  by  express  authority  of  the  Constitution  to 
do  that  by  congressional  enactment  which  hitherto  they  have 
not  had  the  power  to  do,  and  have  never  even  attempted  to  do ; 
that  is,  to  protect  by  national  law  the  privileges  and  immunities 
of  all  the  citizens  of  the  RepubHc  and  the  inborn  rights  of  every 
person  within  its  jurisdiction  whenever  the  same  shall  be 
abridged  or  denied  by  the  unconstitutional  acts  of  any  State. 

Allow  me,  Mr.  Speaker,  in  passing,  to  say  that  this  amend- 
ment takes  from  no  State  any  right  that  ever  pertained  to  it. 
No  State  ever  had  the  right,  under  the  forms  of  law  or  other- 
wise, to  deny  to  any  freeman  the  equal  protection  of  the  laws  or 
to  abridge  the  privileges  or  immunities  of  any  citizen  of  the 
Republic,  although  many  of  them  have  assumed  and  exercised 
the  power,  and  that  without  remedy.  The  amendment  does  not 
give,  as  the  second  section  shows,  the  power  to  Congress  of 
regulating  suffrage  in  the  several  States. 

The  second  section  excludes  the  conclusion  that  by  the  first 
section  suffrage  is  subjected  to  congressional  law;  save,  indeed, 
with  this  exception,  that  as  the  right  in  the  people  of  each  State 
to  a  republican  government  and  to  choose  their  Representa- 
tives' in  Congress  is  one  of  the  guarantees  of  the  Constitution, 
by  this  amendment  a  remedy  might  be  given  directly  for  a 
case  supposed  by  Madison,  where  treason  might  change  a  State 
government  from  a  republican  to  a  despotic  government,  and 
thereby  deny  suffrage  to  the  people.  Why  should  any  American 
citizen  object  to  that?  But,  sir,  it  has  been  suggested,  not  here, 
but  elsewhere,  if  this  section  does  not  confer  suffrage  the  need 
of  it  is  not  perceived.  To  all  such  I  beg  leave  again  to  say,  that 
many  instances  of  State  injustice  and  oppression  have  already 
occurred  in  the  State  legislation  of  this  Union,  of  flagrant  \io- 


522    RECONSTRUCTION  OF  THE  UNION 

lations  of  the  guarantied  privileges  of  citizens  of  the  United 
States,  for  which  the  national  Government  furnished  and  could 
furnish  by  law  no  remedy  whatever.  Contrary  to  the  express 
letter  of  your  Constitution,  "cruel  and  unusual  punishments" 
have  been  inflicted  under  State  laws  within  this  Union  upon 
citizens,  not  only  for  crimes  committed,  but  for  sacred  duty 
done,  for  which  and  against  which  the  Government  of  the 
United  States  had  provided  no  remedy  and  could  pro\'ide  none. 

Sir,  the  words  of  the  Constitution  that  "the  citizens  of  each 
State  shall  be  entitled  to  all  pri\ileges  and  immunities  of  citi- 
zens in  the  several  States"  include,  among  other  privileges,  the 
right  to  bear  true  allegiance  to  the  Constitution  and  laws  of  the 
United  States,  and  to  be  protected  in  life,  Hberty,  and  property. 
Next,  sir,  to  the  allegiance  which  we  all  owe  to  God  our  Creator, 
is  the  allegiance  which  we  owe  to  our  common  country. 

The  time  was  in  our  history,  thirty-three  years  ago,  when,  in 
the  State  of  South  Carolina,  by  solemn  ordinance  adopted  in  a 
convention  held  under  the  authority  of  State  law,  it  was  or- 
dained, as  a  part  of  the  fundamental  law  of  that  State,  that  the 
citizens  of  South  Carolina,  being  citizens  of  the  United  States 
as  well,  should  abjure  their  allegiance  to  every  other  govern- 
ment or  authority  than  that  of  the  State  of  South  Caro- 
lina. .  .  . 

There  was  also,  as  gentlemen  know,  an  attempt  made  at  the 
same  time  by  that  State  to  nullify  the  revenue  laws  of  the 
United  States.  What  was  the  legislation  of  Congress  in  that 
day  to  meet  this  usurpation  of  authority  by  that  State,  viola- 
tive alike  of  the  rights  of  the  national  Government  and  of  the 
rights  of  the  citizen? 

.  .  .  They  provided  a  remedy  by  law  for  the  invasion  of  the 
rights  of  the  Federal  Government  and  for  the  protection  of  its 
officials  and  those  assisting  them  in  executing  the  revenue  laws. 
(See  4  Statutes-at-Large,  632-33.)  No  remedy  was  provided  to 
protect  the  citizen.  Why  was  the  act  to  provide  for  the  collec- 
tion of  the  revenue  passed,  and  to  protect  all  acting  under  it, 
and  no  protection  given  to  secure  the  citizen  against  punish- 
ment for  fidelity  to  his  country?  But  one  answer  can  be  given. 


ORIGIN  OF  THE  XIV  AMENDMENT    523 

There  was  in  the  Constitution  of  the  United  States  an  express 
grant  of  power  to  the  Federal  Congress  to  lay  and  collect  duties 
and  imposts  and  to  pass  all  laws  necessary  to  carry  that  grant 
of  power  into  execution.  But,  sir,  that  body  of  great  and  pa- 
triotic men  looked  in  vain  for  any  grant  of  power  in  the  Consti- 
tution by  which  to  give  protection  to  the  citizens  of  the  United 
States  resident  in  South  Carolina  against  the  infamous  pro- 
vision of  the  ordinance  which  required  them  to  abjure  the  alle- 
giance which  they  owed  their  country.  It  was  an  opprobrium  to 
the  Republic  that  for  fidelity  to  the  United  States  they  could 
not  by  national  law  be  protected  against  the  degrading  pun- 
ishment inflicted  on  slaves  and  felons  by  State  law.  That  great 
want  of  the  citizen  and  stranger,  protection  by  national  law 
from  unconstitutional  State  enactments,  is  supplied  by  the 
first  section  of  this  amendment.  That  is  the  extent  that  it  hath, 
no  more;  and  let  gentlemen  answer  to  God  and  their  country 
who  oppose  its  incorporation  into  the  organic  law  of  the 
land.  .  .  . 

174.  Senator  Howard  on  the  Joint  Resolution} 

The  first  clause  of  this  section  relates  to  the  privileges  and 
immunities  of  citizens  of  the  United  States  as  such,  and  as 
distinguished  from  all  other  persons  not  citizens  of  the  United 
States.  It  is  not,  perhaps,  very  easy  to  define  with  accuracy 
what  is  meant  by  the  expression,  "citizen  of  the  United  States," 
although  that  expression  occurs  twice  in  the  Constitution,  once 
in  reference  to  the  President  of  the  United  States,  in  which 
instance  it  is  declared  that  none  but  a  citizen  of  the  United 
States  shall  be  President,  and  again  in  reference  to  Senators, 
who  are  likewise  to  be  citizens  of  the  United  States.  Undoubt- 
edly the  expression  is  used  in  both  those  instances  in  the  same 
sense  in  which  it  is  employed  in  the  amendment  now  before  us. 
A  citizen  of  the  United  States  is  held  by  the  courts  to  be  a  per- 
son who  was  born  within  the  limits  of  the  United  States  and 
subject  to  their  laws.  Before  the  adoption  of  the  Constitution 
of  the  United  States,  the  citizens  of  each  State  were,  in  a  quali- 
»  Congressional  Globe,  39  Cong.,  i  Sess.,  2765-66.  May  23,  1866. 


524    RECONSTRUCTION  OF  THE  UNION 

fied  sense  at  least,  aliens  to  one  another,  for  the  reason  that  the 
several  States  before  that  event  were  regarded  by  each  other 
as  independent  Governments,  each  one  possessing  a  sufficiency 
of  sovereign  power  to  enable  it  to  claim  the  right  of  naturaliza- 
tion; and,  undoubtedly,  each  one  of  them  possessed  for  itself 
the  right  of  naturalizing  foreigners,  and  each  one,  also,  if  it  had 
seen  fit  so  to  exercise  its  sovereign  power,  might  have  declared 
the  citizens  of  every  other  State  to  be  aliens  in  reference  to 
itself.  With  a  view  to  prevent  such  confusion  and  disorder,  and 
to  put  the  citizens  of  the  several  States  on  an  equality  with  each 
other  as  to  all  fundamental  rights,  a  clause  was  introduced  in 
the  Constitution  declaring  that  "the  citizens  of  each  State  shall 
be  entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States." 

The  effect  of  this  clause  was  to  constitute  ipso  facto  the  citi- 
zens of  each  one  of  the  original  States  citizens  of  the  United 
States.  And  how  did  they  antecedently  become  citizens  of  the 
several  States?  By  birth  or  by  naturalization.  They  became 
such  in  virtue  of  national  law,  or  rather  of  natural  law  which 
recognizes  persons  born  within  the  jurisdiction  of  every  country 
as  being  subjects  or  citizens  of  that  country.  Such  persons 
were,  therefore,  citizens  of  the  United  States,  as  were  born  in 
the  country  or  were  made  such  by  naturaUzation ;  and  the  Con- 
stitution declares  that  they  are  entitled,  as  citizens,  to  all  the 
privileges  and  immunities  of  citizens  in  the  several  States. 
They  are,  by  constitutional  right,  entitled  to  these  privileges 
and  immunities,  and  may  assert  this  right  and  these  pri\'ileges 
and  immunities,  and  ask  for  their  enforcement  whenever  they 
go  within  the  limits  of  the  several  States  of  the  Union.  .  .  . 

Now,  sir,  here  is  a  mass  of  privileges,  immunities,  and 
rights,  some  of  them  secured  by  the  second  section  of  the 
fourth  article  of  the  Constitution,  which  I  have  recited,  some^ 
_byjbhe_first  eight  amendments  of  the  Constitution;  and  it  jsa 
fact  well  worthy  of  attention  that  the  course  of  decision  of  our 
^ourt£^id_the[preseht  settled  doctrine  is,  that  all  these  immuni- 
ties,  privileges,  rightsTThus  guafaiTtieci  by  theXonstitution  or 
recognized  by  itTare^ecured'tolHecitrzen  solely  as  a  citizen  of 


ORIGIN  OF  THE  XIV  AMENDMENT    525 

the  United  States^  and  as  a  party  in  their  courts.  They  do  not 
operate  in  the  sHghtest  degree  as  a  restraint  or  prohibition  upon 
State  legislation.  States  are  not  affected  bv_therrr  andTtlias" 
been  repeatedlylield  that  the  restriction  containedjn^  Con- 
stitution "agaihstThe^king  of  private  property  for  public  use 
without'^st  compensatlffl  not  a  restriction  upon  State 
jg^islation,  buTapplies  only  to  the  legislation  of  Congress.    7~ 

Now,  sir,  there  is  no  power  given  in  the  Constitution  to 
enforce  and  to  carry  out  any  of  these  guarantees.  They  are 
not  powers  granted  by  the  Constitution  to  Congress,  and  of 
course  do  not  come  within  the  sweeping  clause  of  the  Constitu- 
tion authorizing  Congress  to  pass  all  laws  necessary  and  proper 
for  carrying  out  the  foregoing  or  granted  powers,  but  they 
stand  simply  as  a  bill  of  rights  in  the  Constitution,  without 
power  on  the  part  of  Congress  to  give  them  full  effect;  while 
at  the  same  time  the  States  are  not  restrained  from  violating 
the  principles  embraced  in  them  except  by  their  own  local 
constitutions,  which  may  be"  altered  from  year  to  year.  The 
great  object  of  the  first  section  of  this  amendm.ent  is,  therefore, 
to  restrain  the  power  of  the  States  and  compel  them  at  all  times 
to  respect  these  great  fundamental  guarantees.  How  will  it 
be  done  under  the  present  amendment?  AsTTiave  remarked, 
they  are  not  powers'granted  to~Congress,  and  therefore  it  is 
necessary,  if  they  are  to  be  effectuated  and  enforced,  as  they 
assuredly  ought  to  be,  that  additional  power  should  be  given 
to  Congress  to  that  end.  This  is  done  by  the  fifth  section  of  this 
amendment,  which  declares  that  "the  Congress  shall  have 
power  to  enforce  by  appropriate  legislation  the  provisions  of 
this  article."  Here  is  a  direct  afiirmative  delegation  of  power 
to  Congress  to  carry  out  all  the  principles  of  all  these  guaran- 
tees, a  power  not  found  in  the  Constitution. 

The  last  two  clauses  of  the  first  section  of  the  amendment 
disable  a  State  from  depriving  not  merely  a  citizen  of  the 
United  States,  but  any  person,  whoever  he  may  be,  of  life, 
liberty,  or  property  without  due  process  of  law,  or  from  deny- 
ing to  him  the  equal  protection  of  the  laws  of  the  State.  This 
abolishes  all  class  legislation  in  the  States  and  does  away  with 


526    RECONSTRUCTION  OF  THE  UNION 

the  injustice  of  subjecting  one  caste  of  persons  to  a  code  not 
applicable  to  another.  It  prohibits  the  hanging  of  a  black  man 
for  a  crime  for  which  the  white  man  is  not  to  be  hanged.  It 
protects  the  black  man  in  his  fundamental  rights  as  a  citizen 
with  the  same  shield  which  it  throws  over  the  white  man.  .  .  . 
As  I  have  already  remarked,  section  one  is  a  restriction  upon 
the  States,  and  does  not,  of  itself,  confer  any  power  upon 
Congress.  The  power  which  Congress  has,  under  this  amend- 
ment, is  derived,  not  from  that  section,  but  from  the  fifth 
section,  which  gives  it  authority  to  pass  laws  which  are  appro- 
priate to  the  attainm.ent  of  the  great  object  of  the  amendment. 
I  look  upon  the  first  section,  taken  in  connection  ^^-ith  the 
fifth,  as  very  important.  It  will,  if  adopted  by  the  States,  for- 
ever disable  ever}'  one  of  them  from  passing  laws  trenching 
upon  those  fundamental  rights  and  privileges  which  pertain  to 
citizens  of  the  United  States,  and  to  all  persons  who  may  hap- 
pen to  be  within  their  jurisdiction. 

175.  The  Fourteenth  Amendment} 

ARTICLE   XIV 

Section  i.  All  persons  born  of  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States  and  of  the  State  wherein  they  reside.  No 
State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers,  counting 
the  whole  number  of  persons  in  each  State,  excluding  Indians 
not  taxed.  But  when  the  right  to  vote  at  any  election  for  the 
choice  of  electors  for  President  and  Vice-President  of  the 
United  States,  Representatives  in  Congress,  the  executive  and 

*  This  amendment  went  into  effect  July  28.  1868.   Revised  Statutes  oj 

the  United  States  ( 1 8  7  8) ,  3 1 . 


ORIGIN  OF  THE  XIV  MIENDMENT    527 

judicial  officers  of  a  State,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  State, 
being  twenty-one  years  of  age,  and  citizens  of  the  United  States, 
or  in  any  way  abridged,  except  for  participation  in  rebellion, 
or  other  crime,  the  basis  of  representation  therein  shall  be 
reduced  in  the  proportion  which  the  number  of  such  male  citi- 
zens shall  bear  to  the  whole  number  of  male  citizens  twenty- 
one  years  of  age  in  such  State. 

Section  3.  No  person  shall  be  a  Senator  or  Representative 
in  Congress,  or  elector  of  President  and  Vice-President,  or  hold 
any  office,  civil  or  military,  under  the  United  States  or  under 
^y  State,  who,  having  previously  taken  an  oath  as  a  member 
of  Congress,  or  as  an  officer  of  the  United  States,  or  as  a  mem- 
ber of  any  State  legislature,  or  as  an  executive  or  judicial  officer 
of  any  State,  to  support  the  Constitution  of  the  United  States, 
shall  have  engaged  in  insurrection  or  rebellion  against  the  same, 
or  given  aid  or  comfort  to  the  enemies  thereof.  But  Congress 
may,  by  a  vote  of  two-thirds  of  each  house,  remove  such  dis- 
ability. 

Section  4.  The  validity  of  the  public  debt  of  the  United 
States,  authorized  by  law,  including  debts  incurred  for  pay- 
ment of  pensions  and  bounties  for  services  in  suppressing  in- 
surrection or  rebellion,  shall  not  be  questioned.  But  neither 
the  United  States  nor  any  State  shall  assume  or  pay  any  debt 
or  obligation  incurred  in  aid  of  insurrection  or  rebellion  against 
the  United  States,  or  any  claim  for  the  loss  or  emancipation 
of  any  slave;  but  all  such  debts,  obligations,  and  claims  shall 
be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce,  by 
appropriate  legislation,  the  provisions  of  this  article. 


CHAPTER  LVII 

THEORIES  AS  TO  THE  STATUS  OF  THE  STATES 

As  Congress  put  itself  more  directly  into  opposition  to  President  John- 
son, the  leaders  felt  the  need  of  a  theory  respecting  the  status  of  the 
Southern  States  which  should  serve  as  a  sort  of  fulcrum  in  the  approach- 
ing contest.  At  first  the  radical  theories  of  Sumner  and  Stevens  com- 
mended themselves  to  the  average  politician  as  little  as  the  presidential 
theory.  In  the  effort  to  find  safe  middle  ground,  the  Joint  Committee 
on  Reconstruction  formulated  the  forfeited-rights  theory.  In  the  case  of 
Texas  v.  White,  the  Supreme  Court  practically  adopted  the  congressional 
doctrine. 

176.  The  State-Suicide  Theory  of  Charles  Sumner.^ 

...  It  is  true,  beyond  question,  that  the  Acts  of  Secession 
are  all  inoperative  and  void  against  the  Constitution  of  the 
United  States.  Though  matured  in  successive  conventions, 
sanctioned  in  various  forms,  and  maintained  ever  since  by 
bloody  war,  these  acts  —  no  matter  by  what  name  they  may 
be  called  —  are  all  equally  impotent  to  withdraw  an  acre  of 
territory  or  a  single  inhabitant  from  the  rightful  jurisdiction 
of  the  United  States.  But  while  thus  impotent  against  the 
[United  States,  it  does  not  follow  that  they  were  equally  impo- 
l^tent  in  the  work  of  self-destruction.  Clearly,  the  Rebels,  by 
utmost  efforts,  could  not  impair  the  National  jurisdiction;  but 
it  remains  to  be  seen  if  their  enmity  did  not  act  back  with 
fatal  rebound  upon  those  very  State  Rights  in  behalf  of  which 
they  commenced  their  treason.  .  .  . 

...  On   this   important   question    I    discard    all    theoiy, 
whether  it  be  of  State  suicide  or  State  forfeiture  or  State  abdi- 
cation, on  the  one  side,  or  of  State  rights,  immortal  and  unim- 
peachable, on  the  other  side.  ...  It  is  enough,  that,  for  the 
retime  being,  and  in  the  absence  of  a  loyal  government,  they  can 
I  take  no  part  and  perform  no  function  in  the  Union,  so  that  they 
\cannot  he  recognized  by  the  National  Government.  The  reason  is 
*  Atlantic  Monthly,  October,  1863,  xii,  518-26  passim. 


THEORIES  AS  TO  STATUS  OF  STATES    529 

plain.  There  are  in  these  States  no  local  functionaries  bound 
by  constitutional  oaths,  so  that,  in  fact,  there  are  no  constitu- 
tional functionaries;  and  since  the  State  government  is  neces- 
sarily composed  of  such  functionaries,  there  can  be  no  State 
government.  .  .  .  Therefore  to  all  pretensions  in  behalf  of 
State  governments  in  the  Rebel  States  I  oppose  the  simple 
FACT,  that  for  the  time  being  no  such  governments  exist. 
The  broad  spaces  once  occupied  by  those  governments  are 
now  abandoned  and  vacated.  .  .  . 

...  It  is  enough  that  the  Rebel  States  be  declared  vacated, 
as  in  fact  they  are,  by  all  local  government  which  we  are  bound 
to  recognize,  so  that  the  way  is  open  to  the  exercise  of  a  right- 
ful jurisdiction. 

And  here  the  question  occurs.  How  shall  this  rightful  juris- 
diction be  established  in  the  vacated  States?  Some  there  are, 
so  impassioned  for  State  rights,  and  so  anxious  for  forms  even 
at  the  expense  of  substance,  that  they  insist  upon  the  instant 
restoration  of  the  old  State  governments  in  all  their  parts, 
through  the  agency  of  loyal  citizens,  who  meanwhile  must  be 
protected  in  this  work  of  restoration.  But,  assuming  that  all 
this  is  practicable,  as  it  clearly  is  not,  it  attributes  to  the  loyal 
citizens  of  a  Rebel  State,  however  few  in  numbers,  —  it  may 
be  an  insignificant  minority,  —  a  power  clearly  inconsistent 
with  the  received  principle  of  popular  government,  that  the 
majority  must  rule.  .  .  . 

.  .  .  The  new  governments  can  all  be  organized  by  Con-i 
gress,  which  is  the  natural  guardian  of  people  without  any  / 
immediate  government,  and  within  the  jurisdiction  of  the  ' 
Constitution  of  the  United  States.    Indeed,  with  the  State> 
governments  already  vacated  by  rebellion,  the  Constitution 
becomes,  for  the  time,  the  supreme  and  only  law,  binding  alike) 
on  President  and  Congress,  so  that  neither  can  establish  any 
law  or  institution  incompatible  with  it.   And  the  whole  Rebel    i 
region,  deprived  of  all  local  government,  lapses  under  the    \ 
exclusive  jurisdiction  of   Congress,   precisely  as  any  other  ..J 
territory;  or,  in  other  words,  the  lifting  of  the  local  govern- 
ments leaves  the  whole  vast  region  without  any  other  govern- 


530    RECONSTRUCTION  OF  THE  UNION 

ment  than  Congress,  unless  the  President  should  undertake  to 
govern  it  by  military  power.  .  .  . 

If  we  look  at  the  origin  of  this  power  in  Congress,  we  shall 
find  that  it  comes  from  three  distinct  fountains,  any  one  of 
which  is  ample  to  supply  it.  .  .  . 

First.  From  the  necessity  of  the  case,  ex  necessitate  rei,  Con- 
gress must  have  jurisdiction  over  every  portion  of  the  United 
States  where  there  is  no  other  government;  and  since  in  the 
present  case  there  is  no  other  government,  the  whole  region 
falls  within  the  jurisdiction  of  Congress.  This  jurisdiction  .  .  . 
can  be  questioned  only  in  the  name  of  the  local  government; 
but  since  this  government  has  disappeared  in  the  Rebel  States, 
the  jurisdiction  of  Congress  is  uninterrupted  there.  The  whole 
broad  Rebel  region  is  tabula  rasa,  or  "a  clean  slate,"  where 
Congress,  under  the  Constitution  of  the  United  States,  may 
write  the  laws.  .  .  . 

Secondly.  This  jurisdiction  may  also  be  derived  from  the 
Rights  of  War,  which  surely  are  not  less  abundant  for  Congress 
than  for  the  President.  ...  It  is  Congress  that  conquers; 
and  the  same  authority  that  conquers  must  govern.  .  .  . 

Thirdly.  But  there  is  another  source  for  this  jurisdiction 
which  is  common  alike  to  Congress  and  the  President.  It  will 
be  found  in  the  constitutional  proxision,  that  "the  United 
States  shall  guarantee  to  every  State  in  this  Union  a  republican 
form  of  government,  and  shall  protect  each  of  them  against 
invasion."  .  .  . 

.  .  .  When  a  State  fails  to  maintain  a  republican  govern- 
ment with  officers  sworn  according  to  the  requirements  of  the 
Constitution,  it  ceases  to  be  a  constitutional  State.  The  very 
case  contemplated  by  the  Constitution  has  arrived,  and  the 
National  Government  is  invested  with  plenary  powers, 
whether  of  peace  or  war.  .  ,  . 

177.  The  Conquered-Province  Theory  of  Thaddeus  Stevens} 

The  President  assumes,  what  no  one  doubts,  that  the  late 
rebel  States  have  lost  their  constitutional  relations  to  the 
^  December  18,  1865.  Congressional  Globe,  39  Cong.,  i  Sess.,  72. 


THEORIES  AS  TO  STATUS  OF  STATES    531 

Union,  and  are  incapable  of  representation  in  Congress,  except 
by  permission  of  the  Government.   It  matters  but  little,  with 
this  admission,  whether  you  call  them  States  out  of  the  Union, 
and  now  conquered  territories,  or  assert  that  because  the  Con- 
stitution forbids  them  to  do  what  they  did  do,  that  they  are 
therefore  only  dead  as  to  all  national  and  poUtical  action,  and 
will  remain  so  until  the  Government  shall  breathe  into  them 
the  breath  of  Hfe  anew  and  permit  them  to  occupy  their  former 
position.   In  other  words,  that  they  are  not  out  of  the  Union, 
but  are  only  dead  carcasses  lying  within  the  Union.   In  either 
case,  it  is  very  plain  that  it  requires  the  action  of  Congress  to 
enable  them  to  form  a  State  government  and  send  representa- 
tives to  Congress.  Nobody,  I  believe,  pretends  that  with  their 
old  constitutions  and  frames  of  government  they  can  be  per- 
mitted to  claim  their  old  rights  under  the  Constitution.  They 
have  torn  their  constitutional  States  into  atoms,  and  built  on 
their  foundations  fabrics  of  a  totally  different  character.  Dead 
men  cannot  raise  themselves.  Dead  States  cannot  restore  their 
existence  "as  it  was."   Whose  especial  duty  is  it  to  do  it?  In 
whom  does  the  Constitution  place  the  power?  Not  in  the  judi- 
cial branch  of  Government,  for  it  only  adjudicates  and  does  not 
prescribe  laws.  Not  in  the  Executive,  for  he  only  executes  and 
cannot  make  laws.    Not  in  the  Commander-in-Chief  of  the 
armies,  for  he  can  only  hold  them  under  military  rule  until  the 
sovereign  legislative  power  of  the  conqueror  shall  give  them 
law.    Unless  the  law  of  nations  is  a  dead  letter,  the  late  war 
between  two  acknowledged  belligerents  severed  their  original 
compacts  and  broke  all  the  ties  that  bound  them  together.  The 
future  condition  of  the  conquered  power  depends  on  the  will  j 
of  the  conqueror.  They  must  come  in  as  new  states  or  remain 
as  conquered  provinces.  Congress  ...  is  the  only  power  that  J 
can  act  in  the  matter.  .  .  . 


532    RECONSTRUCTION  OF  THE  UNION 

178.  The  Doctrine  of  Forfeited  Rights} 
At  the  close  of  the  rebellion,  therefore,  the  people  of  the 
rebellious  States  were  found,  as  the  President  expresses  it, 
"deprived  of  all  civil  government." 

Under  this  state  of  affairs  it  was  plainly  the  duty  of  the 
President  to  enforce  existing  national  laws,  and  to  estabhsh, 
as  far  as  he  could,  such  a  system  of  government  as  might  be 
provided  for  by  existing  national  statutes.  As  conmaander-in- 
chief  of  a  victorious  army,  it  was  his  duty,  under  the  law  of 
nations  and  the  army  regulations,  to  restore  order,  to  preserve 
property,  and  to  protect  the  people  against  violence  from  any 
quarter  until  provision  should  be  made  by  law  for  their  gov- 
ernment. He  might,  as  President,  assemble  Congress  and  sub- 
mit the  whole  matter  to  the  law-making  power;  or  he  might 
continue  military  supervision  and  control  until  Congress 
should  assemble  on  its  regular  appointed  day.  Selecting  the 
latter  alternative,  he  proceeded,  by  virtue  of  his  power  as 
commander-in-chief,  to  appoint  provisional  governors  over  the 
revolted  States.  .  .  .  But  it  was  not  for  him  to  decide  upon 
the  nature  or  effect  of  any  system  of  government  which  Lhe 
people  of  these  States  might  see  fit  to  adopt.  This  power  is 
lodged  by  the  Constitution  in  the  Congress  of  the  United 
States,  that  branch  of  the  government  in  which  is  vested  the 
authority  to  fix  the  pohtical  relations  of  the  States  to  the 
Union,  whose  duty  it  is  to  guarantee  to  each  State  a  republican 
form  of  government,  and  to  protect  each  and  all  of  them  against 
foreign  or  domestic  violence,  and  against  each  other.  We 
cannot,  therefore,  regard  the  various  acts  of  the  President  in 
relation  to  the  formation  of  local  governments  in  the  insurrec- 
tionary States,  and  the  conditions  imposed  by  him  upon  their 
action,  in  any  other  light  than  as  intimations  to  the  people  that, 
as  commander-in-chief  of  the  army,  he  would  consent  to  with- 
draw mihtary  rule  just  in  proportion  as  they  should,  by  their 
acts,  manifest  a  disposition  to  preserve  order  among  themselves, 

^  Report  of  the  Joint  Committee  on  Reconstrttctiofi,  June  18,  1866,  viii- 
XII  passim. 


THEORIES  AS  TO  STATUS  OF  STATES    533 

establish  governments  denoting  loyalty  to  the  Union,  and 
exhibit  a  settled  determination  to  return  to  their  allegiance, 
leaving  with  the  law-making  power  to  fix  the  term.s  of  their 
final  restoration  to  all  their  rights  and  privileges  as  States  of 
the  Union.  .  .  . 

A  claim  for  the  immediate  admission  of  senators  and  repre- 
sentatives from  the  so-called  Confederate  States  has  been 
urged,  which  seems  to  your  committee  not  to  be  founded  either 
in  reason  or  in  law,  and  which  cannot  be  passed  without  com- 
ment. Stated  in  a  few  words,  it  amounts  to  this:  That  inas- 
much as  the  lately  insurgent  States  had  no  legal  right  to  sepa- 
rate themselves  from  the  Union,  they  still  retain  their  positions 
as  States,  and  consequently  the  people  thereof  have  a  right  to 
immediate  representation  in  Congress  without  the  imposition 
of  any  conditions  whatever;  and  further,  that  until  such  admis- 
sion Congress  has  no  right  to  tax  them  for  the  support  of  the 
government.  It  has  even  been  contended  that  until  such 
admission  all  legislation  affecting  their  interests  is,  if  not 
unconstitutional,  at  least  unjustifiable  and  oppressive. 

It  is  believed  by  your  committee  that  all  these  propositions 
are  not  only  wholly  untenable,  but,  if  admitted,  would  tend 
to  the  destruction  of  the  government. 

It  must  not  be  forgotten  that  the  people  of  these  States, 
without  justification  or  excuse,  rose  in  insurrection  against  the 
United  States.  They  deliberately  abolished  their  State  gov- 
ernments so  far  as  the  same  connected  them  politically  with 
the  Union  as  members  thereof  under  the  Constitution.  They 
deliberately  renounced  their  allegiance  to  the  federal  govern- 
ment, and  proceeded  to  estabhsh  an  independent  government 
for  themselves.  .  .  . 

Whether  legally  and  constitutionally  or  not,  they  did,  in 
fact,  withdraw  from  the  Union  and  made  themselves  subjects 
of  another  governm^ent  of  their  own  creation.  And  they  only 
yielded  when,  after  a  long,  bloody,  and  wasting  war,  they  were 
compelled  by  utter  exhaustion  to  lay  down  their  arms;  and  this 
they  did,  not  v/illingly,  but  declaring  that  they  yielded  because 
they  could  no  longer  resist,  affording  no  evidence  whatever  of 


534    RECONSTRUCTION  OF  THE  UNION 

repentance  for  their  crime,  and  expressing  no  regret,  except  that 
they  had  no  longer  the  power  to  continue  the  desperate  struggle. 

It  cannot,  we  think,  be  denied  by  any  one,  having  a  tolerable 
acquaintance  with  public  law,  that  the  war  thus  waged  was 
a  civil  war  of  the  greatest  magnitude.  The  people  waging  it 
were.ji_ecessarily  subject  to  all  the  rules  which,  by  the  law  of 
nations,  control  a  contest  of  that  character,  and  to  all  the 
legitimate  consequences  following  it.  One  of  those  conse- 
quences was  that,  within  the  limits  prescribed  b}'  humanity, 
the  conquered  rebels  were  at  the  mercy  of  the  conquerors.  .  .  . 

Your  committee  do  not  deem  it  either  necessary  or  proper 
to  discuss  the  question  whether  the  late  Confederate  States  arc 
still  States  of  this  Union,  or  can  ever  be  otherwise.  Granting 
this  profitless  abstraction  about  which  so  many  words  have 
been  wasted,  it  by  no  means  follows  that  the  people  of  those 
States  may  not  place  themselves  in  a  condition  to  abrogate  the 
powers  and  privileges  incident  to  a  State  of  the  Union,  and 
deprive  themselves  of  all  pretence  of  right  to  exercise  those 
powers  'and  enjoy  those  privileges.  A  State  within  the  Union 
has  obligations  to  discharge  as  a  member  of  the  Union.  It  must 
submit  to  federal  laws  and  uphold  federal  authority.  It  must 
have  a  government  rcpubhcan  in  form,  under  and  by  which 
it  is  connected  with  the  general  government,  and  through 
which  it  can  discharge  its  obligations.  It  is  more  than  idle, 
it  is  mockery,  to  contend  that  a  people  who  have  thrown  off 
their  allegiance,  destroyed  the  local  government  which  bound 
their  States  to  the  Union  as  members  thereof,  defied  its  author- 
ity, refused  to  execute  its  laws,  and  abrogated  every  pro\ision 
which  gave  them  poHtical  rights  within  the  Union,  still  retain, 
through  all,  the  perfect  and  entire  right  to  resume,  at  their 
own  will  and  pleasure,  all  their  pri\ileges  within  the  Union, 
and  especially  to  participate  in  its  government,  and  to  control 
the  conduct  of  its  affairs.  To  admit  such  a  principle  for  one 
moment  would  be  to  declare  that  treason  is  alwa\'s  master  and 
loyalty  a  blunder.  Such  a  principle  is  void  by  its  very  nature 
and  essence,  because  inconsistent  with  the  theory  of  govern- 
ment, and  fatal  to  its  very  existence. 


THEORIES  AS  TO  STATUS  OF  STATES    535 

Q5„t]l^^_^o^trary,  we  assert  that  no  portion  of  the  people  of 
this  country,  whether  in  State  or  Territory,  have  the  right, 
while  remaining  on  its  soil,  to  withdraw  from  or  reject  the 
authority  of  the  United  States.  They  must  obey  its  laws  as 
paramount,  and  acknowledge  its  jurisdiction.  They  have  no 
right  to  secede;  and  while  they  can  destroy  their  State  govern- 
ments, and  place  themselves  beyond  the  pale  of  the  Union,  so 
far  as  the  exercise  of  State  privileges  is  concerned,  they  cannot 
escape  the  obligations  imposed  upon  them  by  the  Constitution, 
and  the  laws,  nor  impair  the  exercise  of  national  authority. 
The  Constitution,  it  will  be  observed,  does  not  act  upon  States, 
as  such,  but  upon  the  people;  while,  therefore,  the  people  can- 1 
not  escape  its  authority,  the  States  may,  through  the  act  of  1 
their  people,  cease  to  exist  in  an  organized  form,  and  thus  dis-' 
solve  their  political  relations  with  the  United  States.  ...     J 

179.  The  Supreme  Court  on  the  Status  of  the  States} 

...  A  State,  in  the  ordinary  sense  of  the  Constitution,  is  a 
poHtical  community  of  free  citizens,  occupying  a  territory  of 
defined  boundaries,  and  organized  under  a  government  sanc- 
tioned and  limited  by  a  written  constitution,  and  established 
by  the  consent  of  the  governed.  .  .  . 

In  all  respects,  so  far  as  the  objects  could  be  accomplished 
by  ordinances  of  the  convention,  by  acts  of  the  legislature,  and 
by  votes  of  the  citizens,  the  relations  of  Texas  to  the  Union 
were  broken  up,  and  new  relations  to  a  new  government  were 
established  for  them.  .  .  . 

Did  Texas,  in  consequence  of  these  acts,  cease  to  be  a  State? 
Or,  if  not,  did  the  State  cease  to  be  a  member  of  the  Union? 

It  is  needless  to  discuss,  at  length,  the  question  whether  the 
right  of  a  State  to  withdraw  from  the  Union  for  any  cause, 
regarded  by  herself  as  sufficient,  is  consistent  with  the  Constitu- 
tion of  the  United  States. 

The  Union  of  the  States  never  was  a  purely  artificial  and 
arbitrary  relation.  It  began  among  the  Colonies,  and  grew  out 
of  common  origin,   mutual  sympathies,   kindred  principles, 
^  Texas  v.  White,  1868.  7  Wallace,  700. 


536    RECONSTRUCTION  OF  THE  UNION 

similar  interests,  and  geographical  relations.  It  was  confirmed 
and  strengthened  by  the  necessities  of  war,  and  received  de- 
finite form,  and  character,  and  sanction  from  the  Articles  of 
Confederation.  By  these  the  Union  was  solemnly  declared  to 
"be  perpetual."  And  when  these  Articles  were  found  to  be 
inadequate  to  the  exigencies  of  the  country,  the  Constitution 
was  ordained  "to  form  a  more  perfect  Union."  Itisdifl&cult  to 
convey  the  idea  of  indissoluble  unity  more  clearly  than  by 
these  words.  What  can  be  indissoluble  if  a  perpetual  Union, 
made  more  perfect,  is  not? 

But  the  perpetuity  and  indissolubihty  of  the  Union,  by  no 
means  implies  the  loss  of  distinct  and  individual  existence,  or 
of  the  right  of  self-government  by  the  States.  .  .  . 

,  .  .  Not  only  therefore  can  there  be  no  loss  of  separate  and 
independent  autonomy  to  the  States,  through  their  union  and 
under  the  Constitution,  but  it  may  be  not  unreasonably  said  that 
the  preservation  of  the  States,  and  the  maintenance  of  their  gov- 
ernments, are  as  much  within  the  design  and  care  of  the  Con- 
stitution as  the  preservation  of  the  Union  and  the  maintenance 
of  the  National  government.  The  Constitution,  in  all  of  its  pro- 
visions, looks  to  an  indestructible  Union,  composed  of  inde- 
structible States.  .  .  . 

Considered  therefore  as  transacted  under  the  Constitution, 
the  ordinance  of  secession,  adopted  by  the  convention  and  rati- 
fied by  a  majority  of  the  citizens  of  Texas,  and  all  the  acts  of 
her  legislature  intended  to  give  effect  to  that  ordinance,  were 
absolutely  null.  They  were  utterly  without  operation  in  law. 
The  obligations  of  the  State,  as  a  member  of  the  Union,  and  of 
every  citizen  of  the  State,  as  a  citizen  of  the  United  States, 
remained  perfect  and  unimpaired.  It  certainly  follows  that 
the  State  did  not  cease  to  be  a  State,  nor  her  citizens  to  be  citi- 
zens of  the  Union.  .  .  . 

And  it  is  by  no  means  a  logical  conclusion,  from  the  premises 
which  we  have  endeavored  to  establish,  that  the  governmental 
relations  of  Texas  to  the  Union  remained  unaltered.  Obliga- 
tions often  remain  unimpaired,  while  relations  are  greatly 
changed.    The  obligations  of  allegiance  to  the  State,  and  of 


THEORIES  AS  TO  STATUS  OF  STATES    537 

obedience  to  her  laws,  subject  to  the  Constitution  of  the 
United  States,  are  binding  upon  all  citizens,  whether  faithful 
or  unfaithful  to  them;  but  the  relations  which  subsist  while 
these  obligations  are  performed,  are  essentially  different  from 
those  which  arise  when  they  are  disregarded  and  set  at  nought. 
And  the  same  must  necessarily  be  true  of  the  obligations  and 
relations  of  States  and  citizens  to  the  Union.  No  one  has  been 
bold  enough  to  contend  that,  while  Texas  was  controlled  by 
a  government  hostile  to  the  United  States,  and  in  affihation 
with  a  hostile  confederation,  waging  war  upon  the  United 
States,  senators  chosen  by  hei  legislature,  or  representatives 
elected  by  her  citizens,  were  entitled  to  seats  in  Congress;  or 
that  any  suit,  instituted  in  her  name,  could  be  entertained  in 
this  court.  All  admit  that,  during  this  condition  of  civil  war, 
the  rights  of  the  State  as  a  member,  and  of  her  people  as  citi- 
zens of  the  Union,  were  suspended.  The  government  and  the 
cftizens  of  the  State,  refusing  to  recognize  their  constitu- 
tional obligations,  assumed  the  character  of  enemies,  and 
incurred  the  consequences  of  rebellion.  ... 


CHAPTER  LVIII 

CONGRESSIONAL    RECONSTRUCTION 

The  policy  of  the  radical  leaders  who  dominated  Congress  after  the 
elections  of  1866  has  been  well  characterized  as  "thorough."  Their  pur- 
poses were  to  assert  effectively  the  control  of  Congress  over  the  President, 
and,  disregarding  the  governments  which  he  had  recognized,  to  reorganize 
the  Southern  States  on  the  basis  of  negro  suffrage.  The  first  object  was 
attained  by  the  Tenure  of  Office  Act  and  by  the  provision  in  the  Appro- 
priation Act  which  forbade  the  President  to  issue  military  orders  except 
through  the  general  of  the  army.  The  other  purpose  was  accomplished 
by  the  three  Reconstruction  Acts  of  March  2,  March  2^,  and  July  17. 
All  were  passed  over  the  President's  veto.  The  broad  constitutional 
grounds  upon  which  the  President  based  his  opposition  are  stated  in  the 
following  passages  from  his  messages. 

180.  Veto  Message  of  March  2,  1867} 

The  bill  places  all  the  people  of  the  ten  States  therein  named 
under  the  absolute  domination  of  military  rulers;  and  the 
preamble  undertakes  to  give  the  reason  upon  which  the 
measure  is  based  and  the  ground  up>on  which  it  is  justified.  It 
declares  that  there  exists  in  those  States  no  legal  governments 
and  no  adequate  protection  for  life  or  property,  and  asserts 
the  necessity  of  enforcing  p>eace  and  good  order  within  their 
limits.  .  .  . 

The  bill,  however,  would  seem  to  show  upon  its  face  that 
the  establishment  of  peace  and  good  order  is  not  its  real  object. 
The  fifth  section  declares  that  the  preceding  sections  shall 
cease  to  operate  in  any  State  where  certain  events  shall  have 
happened.  These  events  are,  first,  the  selection  of  delegates  to 
a  State  convention  by  an  election  at  which  negroes  shall  be 
allowed  to  vote;  second,  the  formation  of  a  State  constitution 
by  the  convention  so  chosen;  third,  the  insertion  into  the  State 
constitution  of  a  provision  which  will  secure  the  right  of  voting 
at  all  elections  to  negroes  and  to  such  white  men  as  may  not 

^  Richardson,. If  e55cge5  and  Papers  of  the  Presidents,  vi,  498-507  passim. 


CONGRESSIONAL  RECONSTRUCTION    539 

be  disfranchised  for  rebeJlion  or  felony;  fourth,  the  submission 
of  the  constitution  for  ratification  to  negroes  and  white  men 
not  disfranchised,  and  its  actual  ratification  by  their  vote; 
fifth,  the  submission  of  the  State  constitution  to  Congress  for 
examination  and  approval,  and  the  actual  approval  of  it  by 
that  body;  sixth,  the  adoption  of  a  certain  amendment  to  the 
Federal  Constitution  by  a  vote  of  the  legislature  elected  under 
the  new  constitution;  seventh,  the  adoption  of  said  amendment 
by  a  sufiicient  number  of  other  States  to  make  it  a  part  of  the 
Constitution  of  the  United  States.  All  these  conditions  must 
be  fulfilled  before  the  people  of  any  of  these  States  can  be 
relieved  from  the  bondage  of  military  domination;  but  when 
they  are  fulfilled,  then  immediately  the  pains  and  penalties 
of  the  bill  are  to  cease,  no  matter  whether  there  be  peace  and 
order  or  not,  and  without  any  reference  to  the  security  of  life 
or  property.  The  excuse  given  for  the  bill  in  the  preamble  is 
admitted  by  the  bill  itself  not  to  be  real.  The  military  rule 
which  it  establishes  is  plainly  to  be  used,  not  for  any  purpose 
of  order  or  for  the  prevention  of  crime,  but  solely  as  a  means 
of  coercing  the  people  into  the  adoption  of  principles  and 
measures  to  which  it  is  known  that  they  are  opposed,  and  upon 
which  they  have  an  undeniable  right  to  exercise  their  own 
judgment.  .  .  . 

.  .  .  Have  we  the  power  to  estabhsh  and  carry  into  execu- 
tion a  measure  like  this?  I  answer.  Certainly  not,  if  we  derive 
our  authority  from  the  Constitution  and  if  we  are  bound  by  the 
limitations  which  it  imposes. 

This  proposition  is  perfectly  clear,  that  no  branch  of  the 
Federal  Government  —  executive,  legislative,  or  judicial  — 
can  have  any  just  powers  except  those  which  it  derives  through 
and  exercises  under  the  organic  law  of  the  Union.  Outside  of 
the  Constitution  we  have  no  legal  authority  more  than  private 
citizens,  and  within  it  we  have  only  so  much  as  that  instrument 
gives  us.  This  broad  principle  limits  all  our  functions  and  ap- 
pHes  to  all  subjects.  It  protects  not  only  the  citizens  of  States 
which  are  within  the  Union,  but  it  shields  every  human  being 
who  comes  or  is  brought  under  our  jurisdiction.  We  have  no 


540    RECONSTRUCTION  OF  THE  UNION 

rio-ht  to  do  in  one  place  more  than  in  another  that  which  the 
Constitution  says  we  shall  not  do  at  all.  If,  therefore,  the 
Southern  States  were  in  truth  out  of  the  Union,  we  could  not 
treat  their  people  in  a  way  which  the  fundamental  law  forbids. 
Some  persons  assume  that  the  success  of  our  arms  in  crush- 
ino-  the  opposition  which  was  made  in  some  of  the  States  to 
the  execution  of  the  Federal  laws  reduced  those  States  and  all 
their  people  —  the  innocent  as  well  as  the  guilty  —  to  the  con- 
dition of  vassalage  and  ga\^e  us  a  power  over  them  which  the 
Constitution  does  not  bestow  or  define  or  Umit.  No  fallacy 
can  be  more  transparent  than  this.  Our  victories  subjected 
the  insurgents  to  legal  obedience,  not  to  the  yoke  of  an  arbi- 
*  trary  despotism.  When  an  absolute  sovereign  reduces  his 
rebelHous  subjects,  he  may  deal  with  them  according  to  his 
pleasure,  because  he  had  that  power  before.  But  when  a  lim- 
ited monarch  puts  down  an  insurrection,  he  must  still  govern 
according  to  law.  .  .  . 

This  is  a  bill  passed  by  Congress  in  time  of  peace.  There  is 
not  in  any  one  of  the  States  brought  under  its  operation  either 
war  or  insurrection.  The  laws  of  the  States  and  of  the  Federal 
Government  are  all  in  undisturbed  and  harmonious  operation. 
The  courts.  State  and  Federal,  are  open  and  in  the  full  exercise 
of  their  proper  authority.  Over  every  State  comprised  in  these 
five  military  districts,  life,  liberty,  and  property  are  secured 
by  State  laws  and  Federal  laws,  and  the  National  Constitu- 
tion is  ever^-where  in  force  and  everj'where  obeyed.    What, 
then,  is  the  ground  on  which  this  bill  proceeds?  The  title  of  the 
bill  announces  that  it  is  intended  "for  the  more  efficient  gov- 
ernment" of  these  ten  States.  It  is  recited  by  way  of  preamble 
that  no  legal  State  governments  "nor  adequate  protection  for 
life  or  property"  exist  in  those  States,  and  that  peace  and  good 
order  should  be  thus  enforced.   The  first  thing  which  arrests 
attention   upon  these  recitals,   which  prepare  the  way  for 
martial  law,  is  this,  that  the  only  foundation  upon  which 
martial  law  can  exist  under  our  form  of  government  is  not 
stated  or  so  much  as  pretended.  Actual  war,  foreign  invasion, 
domestic  insurrection  —  none  of  these  appear ;  and  none  of 


CONGRESSIONAL  RECONSTRUCTION    541 

these,  in  fact,  exist.  It  is  not  even  recited  that  any  sort  of  war 
or  insurrection  is  threatened.  Let  us  pause  here  to  consider, 
upon  this  question  of  constitutional  law  and  the  power  of 
Congress,  a  recent  decision  of  the  Supreme  Court  of  the  United 
States  in  ex  parte  MiUigan.  .  .  . 

The  purpose  and  object  of  the  bill  —  the  general  intent 
which  pervades  it  from  beginning  to  end  —  is  to  change  the 
entire  structure  and  character  of  the  State  governments  and  to 
compel  them  by  force  to  the  adoption  of  organic  laws  and  regu- 
lations which  they  are  unwilling  to  accept  if  left  to  themselves. 
The  negroes  have  not  asked  for  the  privilege  of  voting ;  the  vast 
majority  of  them  have  no  idea  what  it  means.  This  bill  not  only 
thrusts  it  into  their  hands,  but  compels  them,  as  well  as  the 
whites,  to  use  it  in  a  particular  way.  If  they  do  not  form  a  con- 
stitution with  prescribed  articles  in  it  and  afterwards  elect  a 
legislature  which  will  act  upon  certain  measures  in  a  presciibed 
way,  neither  blacks  nor  whites  can  be  relieved  from  the  slavery 
which  the  bill  imposes  upon  them.  Without  pausing  here  to 
consider  the  policy  or  impolicy  of  Africanizing  the  southern 
part  of  our  territory,  I  would  simply  ask  the  attention  of  Con- 
gress to  that  manifest,  well-known,  and  universally  acknow- 
ledged ndeof  constitutional  law  which  declares  that  the  Federal 
Government  has  no  jurisdiction,  authority,  or  powder  to  regu 
late  such  subjects  for  any  State.  To  force  the  right  of  suffrage 
out  of  the  hands  of  the  white  people  and  into  the  hands  of  the 
negroes  is  an  arbitrary  violation  of  this  principle.  .  .  . 

181.  Veto  Message  of  March  23,  1867} 

This  bill  provides  for  elections  in  the  ten  States  brought 
under  the  operation  of  the  original  act  to  which  it  is  suj^pie- 
mentary.  Its  details  are  principally  directed  to  the  elections 
for  the  form.ation  of  the  State  constitutions,  but  by  the  sixth 
section  of  the  bill  "all  elections"  in  these  States  occurring 
while  the  original  act  remains  in  force  are  brought  within  its 
purview.  .  .  , 
.  .  .  No  consideration  could  induce  me  to  give  my  approval 

'  Richardson,  Messages  and  Papers  oj  the  Presidents,  vi,  531-34  passim. 


y^ 


542    RECONSTRUCTION  OF  THE  UNION 

to  such  an  election  law  for  any  purpose,  and  especially  for  the 
great  puipose  of  framing  the  constitution  of  a  State.  If  ever  the 
American  citizen  should  be  left  to  the  free  exercise  of  his  own 
judgment  it  is  when  he  is  engaged  in  the  work  of  forming  the 
fundamental  law  under  which  he  is  to  Hve.  That  work  is  his 
work,  and  it  can  not  properly  be  taken  out  of  his  hands.  All 
this  legislation  proceeds  upon  the  contrary  assumption  that  the 
people  of  each  of  these  States  shall  have  no  constitution  except 
such  as  may  be  arbitrarily  dictated  by  Congress  and  formed 
under  the  restraint  of  miUtary  rule.  A  plain  statement  of  facts 
makes  this  evident. 

In  all  these  States  there  are  existing  constitutions,  framed  in 
the  accustomed  way  by  the  people.  Congress,  however,  de- 
clares that  these  constitutions  are  not  "loyal  and  republican," 
and  recjuires  the  people  to  form  them  anew.  What,  then,  in  the 
opinion  of  Congress,  is  necessary  to  make  the  constitution  of  a 
State  "loyal  and  republican"?  The  original  act  answers  the 
r  question:  It  is  uiuyersal  negro  suffrage  —  a  question  which  the 
\  Federal  Constitution  leaves  exclusively  to  the  States  them- 
selves. All  this  legislative  machinery  of  martial  law,  miUtary 
coercion,  and  poHtical  disfranchisement  is  avowedly  for  that 
purpose  and  none  other.  The  existing  constitutions  of  the  ten 
States  conform  to  the  acknowledged  standards  of  loyalty  and 
republicanism.  Indeed,  if  there  are  degrees  in  republican  forms 
of  government,  their  constitutions  are  more  republican  now 
than  when  these  States,  four  of  which  were  members  of  the 
original  thirteen,  first  became  members  of  the  Union. 

Congress  does  not  now  demand  that  a  single  provision  of 
their  constitution  be  changed  except  such  as  confine  suffrage  to 
the  white  population.  It  is  apparent,  therefore,  that  these  pro- 
visions do  not  conform  to  the  standard  of  republicanism  which 
Congress  seeks  to  establish.  That  there  may  be  no  mistake,  it 
is  only  necessary  that  reference  should  be  made  to  the  original 
act,  which  declares  "such  constitution  shall  pro\dde  that  the 
elective  franchise  shall  be  enjoyed  by  all  such  persons  as  have 
the  qualifications  herein  stated  for  electors  of  delegates."  What 
class  of  persons  is  here  meant  clearly  appears  in  the  same  sec- 


CONGRESSIONAL  RECONSTRUCTION    543 

tion;  that  is  to  say,  "the  male  citizens  of  said  State  21  years  old 
and  upward,  of  whatever  race,  color,  or  previous  condition, 
who  have  been  resident  in  said  State  for  one  year  previous  to 
the  day  of  such  election." 

Without  these  provisions  no  constitution  which  can  be 
framed  in  any  one  of  the  ten  States  will  be  of  any  avail  with 
Congress.  This,  then,  is  the  test  of  what  the  constitution  of  a 
State  of  this  Union  must  contain  to  make  it  repubhcan.  Meas- 
ured by  such  a  standard,  how  few  of  the  States  now  composing 
the  Union  have  repubhcan  jonstitutions !  If  in  the  exercise  of 
the  constitutional  guaranty  that  Congress  shall  secure  to  every 
State  a  repubhcan  form  of  government  universal  suffrage  for 
blacks  as  well  as  whites  is  a  sine  qua  non,  the  work  of  recon- 
struction may  as  well  begin  in  Ohio  as  in  Virginia,  in  Pennsyl- 
vania as  in  North  Carolina.  .  .  . 

182.  Veto  Message  of  July  ig,  iS6y} 

The  veto  of  the  original  bill  of  the  2d  of  March  was  based  on 
t-svo^distinct  grounds  —  the  interference  of  Congress  in  matters 
strictly  appertaining  to  the  reserved  powers  of  the  States  and 
the  estabHshment  of  military  tribunals  for  the  trial  of  citizens 
in  time  of  peace.  The  impartial  reader  of  that  message  will 
understand  that  all  that  it  contains  with  respect  to  military 
despotism  and  martial  law  has  reference  especially  to  the  fear- 
ful power  conferred  on  the  district  commanders  to  displace  the 
criminal  courts  and  assume  jurisdiction  to  try  and  to  punish  by 
military  boards ;  that,  potentially,  the  suspension  of  the  habeas 
corpus  was  martial  law  and  military  despotism.  The  act  now 
before  me  not  only  declares  that  the  intent  was  to  confer  such 
military  authority,  but  also  to  confer  unlimited  military  au- 
thority over  all  the  other  courts  of  the  State  and  over  all  the 
officers  of  the  State  —  legislative,  executive,  and  judicial.  Not 
content  with  the  general  grant  of  power.  Congress,  in  the  sec- 
ond section  of  this  bill,  specifically  gives  to  each  miUtary  com- 
mander the  power  "to  suspend  or  remove  from  office,  or  from 
the  performance  of  official  duties  and  the  exercise  of  official 

'  Richardson,  Messages  and  Papers  of  the  Presidents,  vi,  537-44  passim. 


544    RECONSTRUCTION  OF  THE  UNION 

powers,  any  officer  or  person  holding  or  exercising,  or  professing 
to  hold  or  exercise,  any  civil  or  military  office  or  duty  in  such 
district  under  any  power,  election,  appointment,  or  authority 
derived  from,  or  granted  by,  or  claimed  under  any  so-called 
State,  or  the  government  thereof,  or  any  municipal  or  other 
division  thereof." 

A  power  that  hitherto  all  the  departments  of  the  Federal 
Government,  acting  in  concert  or  separately,  have  not  dared  to 
exercise  is  here  attempted  to  be  conferred  on  a  subordinate 
military  officer.  To  him,  as  a  military  officer  of  the  Federal 
Government,  is  given  the  power,  supported  by  "a  sufficient 
military  force,"  to  remove  every  civil  officer  of  the  State.  What 
next  ?  The  district  commander,  who  has  thus  displaced  the  ci\il 
officer,  is  authorized  to  fill  the  vacancy  by  the  detail  of  an 
officer  or  soldier  of  the  Army,  or  by  the  appointment  of  "some 
other  person."  .  .  . 

The  clear  intent  of  this  section  is  that  the  officer  or  soldier 
detailed  to  fill  a  ci\dl  office  must  execute  its  duties  according  to 
the  laws  of  the  State.  .  .  . 

A  singular  contradiction  is  apparent  here.  Congress  declares 
these  local  State  governments  to  be  illegal  governments,  and 
then  provides  that  these  illegal  governments  shall  be  carried  on 
by  Federal  officers,  who  are  to  perform  the  very  duties  imposed 
on  its  own  officers  by  this  illegal  State  authority.  It  certainly 
would  be  a  novel  spectacle  if  Congress  should  attempt  to  carry 
on  a  legal  State  goveinm.ent  by  the  agency  of  its  own  officers. 
It  is  yet  more  strange  that  Congress  attempts  to  sustain  and 
carry  on  an  illegal  State  government  by  the  same  Federal 
agency.  .  .  . 

This  bill  and  the  acts  to  which  it  is  supplementary  are  all 
founded  upon  the  assumption  that  these  ten  communities  are 
jnot  States  and  that  their  existing  governments  are  not  legal. 
Throughout  the  legislation  upon  this  subject  they  are  called 
"rebel  States,"  and  in  this  particular  bill  they  are  denominated 
"so-called  States,"  and  the  vice  of  illegahty  is  declared  to 
pervade  all  of  them.  The  obligations  of  consistency  bind  a 
legislative  body  as  well  as  the  individuals  who  compose  it.   It 


CONGRESSIONAL  RECONSTRUCTION    545 

is  now  too  late  to  say  that  these  ten  political  communities  are 
not  States  of  the  Union.  Declarations  to  the  contrary  made  in 
these  three  acts  are  contradicted  again  and  again  by  repeated 
acts  of  legislation  enacted  by  Congress  from  the  year  1861  to 
the  year  1867. 

During  that  period,  while  these  States  were  in  actual  rebel- 
lion, and  after  that  rebellion  was  brought  to  a  close,  they  have 
been  again  and  again  recognized  as  States  of  the  Union.  Re- 
presentation has  been  apportioned  to  them  as  States.  They  hav« 
been  divided  into  judicial  districts  for  the  holding  of  district 
and  circuit  courts  of  the  United  States,  as  States  of  the  Union 
only  can  be  districted.  The  last  act  on  this  subject  was  passed 
July  23,  1866,  by  which  every  one  of  these  ten  States  was 
arranged  into  districts  and  circuits. 

They  have  been  called  upon  by  Congress  to  act  through  their 
legislatures  upon  at  least  two  amendments  to  the  Constitution 
of  the  United  States.  As  States  they  have  ratified  one  amend- 
ment, which  required  the  vote  of  twenty-seven  States  of  the 
thirty-six  then  composing  the  Union.  When  the  requisite 
twenty-seven  votes  were  given  in  favor  of  that  amendment  — 
seven  of  which  votes  were  given  by  seven  of  these  ten  States  — 
it  was  proclaimed  to  be  a  part  of  the  Constitution  of  the  United 
States,  and  slavery  was  declared  no  longer  to  exist  within  the 
United  States  or  any  place  subject  to  their  jurisdiction.  If 
these  seven  States  were  not  legal  States  of  the  Union,  it  follows 
as  an  inevitable  consequence  that  in  some  of  the  States  slavery 
yet  exists.  It  does  not  exist  in  these  seven  States,  for  they  have 
aboUshed  it  also  in  their  State  constitutions;  but  Kentucky  not 
having  done  so,  it  would  still  remain  in  that  State.  But,  in 
truth,  if  this  assumption  that  these  States  have  no  legal  State 
governments  be  true,  then  the  abolition  of  slavery  by  these 
illegal  governments  binds  no  one,  for  Congress  now  denies  to 
these  States  the  power  to  abolish  slavery  by  den>-ing  to  them 
the  power  to  elect  a  legal  State  legislature,  or  to  frame  a  con- 
stitution for  any  purpose,  even  for  such  a  purpose  as  the 
abolition  of  slavery.  .  .  . 

So  much  for  continuous  legislative  recognition.    The  in- 


546    RECONSTRUCTION  OF  THE  UNION 

stances  cited,  however,  fall  far  short  of  all  that  might  be  enum- 
erated. Executive  recognition,  as  is  well  known,  has  been 
frequent  and  unwavering.  The  same  may  be  said  as  to  judicial 
recognition  through  the  Supreme  Court  of  the  United  States. 
That  august  tribunal,  from  first  to  last,  in  the  administration 
of  its  duties  in  banc  and  upon  the  circuit,  bas  never^failed 
to  recognize  these  ten  communities  as  legal  States  of  the 
Union.  .  .  . 

Within  a  period  less  than  a  year  the  legislation  of  Congress 
has  attempted  to  strip  the  executive  department  of  the  Gov- 
ernment of  some  of  its  essential  powers.  The  Constitution  and 
the  oath  pro\dded  in  it  devoh-e  upon  the  President  the  power 
and  duty  to  see  that  the  laws  are  faithfully  executed.  The  Con- 
stitution, in  order  to  carry  out  this  power,  gives  him  the  choice 
of  the  agents,  and  makes  them  subject  to  his  control  and  super- 
vision. But  in  the  execution  of  these  laws  the  constitutional 
obligation  upon  the  President  remains,  but  the  power  to  exer- 
cise that  constitutional  duty  is  efifectually  taken  away.  The 
military  commander  is  as  to  the  power  of  appointment  made  to 
take  the  place  of  the  President,  and  the  General  of  the  Aimy 
the  place  of  the  Senate;  and  any  attempt  on  the  part  of  the 
President  to  assert  his  own  constitutional  power  may,  under 
pretense  of  law,  be  met  by  official  insubordination.  It  is  to  be 
feared  that  these  military  officers,  looking  to  the  authoiity 
given  by  these  laws  rather  than  to  the  letter  of  the  Constitu- 
tion, will  recognize  no  authority  but  the  commander  of  the 
district  and  the  General  of  the  Army. 

If  there  were  no  other  objection  than  this  to  this  proposed 
legislation,  it  would  be  sufficient.  Whilst  I  hold  the  chief 
executive  authority  of  the  United  States,  whilst  the  obligation 
rests  upon  me  to  see  that  all  the  laws  are  faithfully  executed, 
I  can  never  willingly  surrender  that  trust  or  the  powers  giv^n 
for  its  execution.  .  .  . 


CHAPTER  LIX 

THE  SUPREME  COURT  AND  RECONSTRUCTION 

During  actual  reconstruction,  the  Supreme  Court  showed  great  reluct- 
ance to  take  sides  in  the  political  controversy.  It  was  even  accused  of 
welcoming  technicalities  to  avoid  passing  upon  the  constitutionality  of 
congressional  reconstruction.  In  the  case  of  Mississippi  v.  Johnson,  the 
Court  refused  to  express  an  opinion  on  the  work  of  the  radicals,  confining 
itself  strictly  to  the  question  whether  it  could  restrain  the  President  by 
injunction  from  carrying  out  any  act  of  Congress.  In  the  case  of  Texas  v. 
VVhite,  decided  in  1868,  the  Supreme  Court  took  a  more  positive  attitude 
toward  the  issues  which  had  convulsed  the  country.  While  the  Court  did 
not  pronounce  directly  upon  the  constitutionality  of  the  Reconstruction 
Acts,  it  did  in  general  justify  the  course  of  congressional  action.  Extracts 
from  the  first  part  of  the  decision  have  already  been  given  [No.  179]. 

183.  State  of  Mississippi  v.  Andrew  Johnson,  President} 

The  Chief  Justice  delivered  the  opinion  of  the  Court: 

A  motion  was  made,  some  days  since,  in  behalf  of  the  State  of 
Mississippi,  for  leave  to  file  a  bill  in  the  name  of  the  State, 
praying  this  court  to  perpetually  enjoin  and  restrain  Andrew 
Johnson,  President  of  the  United  States,  and  E.  0.  C.  Ord,  gen- 
eral commanding  in  the  District  of  Mississippi  and  Arkansas, 
from  executing,  or  in  any  manner  carrying  out,  certain  acts  of 
Congress  therein  named. 

The  acts  referred  to  are  those  of  March  2d,  and  March  23d, 
1867,  commonly  known  as  the  Reconstruction  Acts. 

The  Attorney- General  objected  to  the  leave  asked  for,  upon 
the  ground  that  no  bill  which  makes  a  President  a  defendant, 
and  seeks  an  injunction  against  him  to  restrain  the  performance 
of  his  duties  as  President,  should  be  allowed  to  be  filed  in  this 
court. 

This  point  has  been  fully  argued,  and  we  will  now  dispose  of 
it. 

We  shall  limit  our  inquiry  to  the  question  presented  by  the 
objection,  without  expressing  any  opinion  on  the  broader  issues 
1  Supreme  Court  of  the  United  States,  1867.  4  Wallace,  475- 


548    RECONSTRUCTION  OF  THE  UNION 

discussed  in  argument,  whether,  in  any  case,  the  President  of 
the  United  States  may  be  required,  by  the  process  of  this  court, 
to  perform  a  purely  ministerial  act  under  a  positive  law,  or  may 
be  held  amenable,  in  any  case,  otherwise  than  by  impeachment 
for  crime. 

The  single  point  which  requires  consideration  is  this:  Can  the 
President  be  restrained  by  injunction  from  carrying  into  effect 
an  act  of  Congress  alleged  to  be  unconstitutional? 

It  is  assumed  by  the  counsel  for  the  State  of  Mississippi, 
that  the  President,  in  the  execution  of  the  Reconstruction  Acts, 
is  required  to  perform  a  mere  ministerial  duty.  In  this  assump- 
tion there  is,  we  think,  a  confounding  of  the  terms  ministerial 
and  executive,  which  are  by  no  means  equivalent  in  import. 

A  ministerial  duty,  the  performance  of  which  may,  in  proper 
cases,  be  required  of  the  head  of  a  department,  by  judicial 
process,  is  one  in  respect  to  which  nothing  is  left  to  discretion. 
It  is  a  simple,  definite  duty,  arising  under  conditions  admitted 
or  proved  to  exist,  and  imposed  by  law.  .  .  . 

Very  different  is  the  duty  of  the  President  in  the  exercise  of 
the  power  to  see  that  the  laws  are  faithfully  executed,  and 
among  these  laws  the  acts  named  in  the  bill.  By  the  first  of 
these  acts  he  is  required  to  assign  generals  to  command  in  the 
several  military  districts,  and  to  detail  sufficient  military  force 
to  enable  such  officers  to  discharge  their  duties  under  the  law. 
By  the  supplementary  acts,  other  duties  are  imposed  on  the 
several  commanding  generals,  and  these  duties  must  necessarily 
be  performed  under  the  supervision  of  the  President  as  com- 
mander-in-chief. The  duty  thus  imposed  on  the  President  is  in 
no  just  sense  ministerial.   It  is  purely  executive  and  political. 

An  attempt  on  the  part  of  the  judicial  department  of  the  gov- 
ernment to  enforce  the  performance  of  such  duties  by  the  Presi- 
dent might  be  justly  characterized,  in  the  language  of  Chief 
Justice  Marshall,  as  "an  absurd  and  excessive  extravagance." 

It  is  true  that  in  the  instance  before  us  the  interposition  of 
the  court  is  not  sought  to  enforce  action  by  the  Executive 
under  constitutional  legislation,  but  to  restrain  such  action 
under  legislation  alleged  to  be  unconstitutional.    But  we  are 


JUDICIARY  AND   RECONSTRUCTION    549 

unable  to  perceive  that  this  circumstance  takes  the  case  out 
of  the  general  principles  which  forbid  judicial  interference  with 
the  exercise  of  Executive  discretion. 

It  was  admitted  in  the  argument  that  the  application  now 
made  to  us  is  without  a  precedent;  and  this  is  of  much  weight 
against  it. 

Had  it  been  supposed  at  the  bar  that  this  court  would,  in  any 
case,  interpose,  by  injunction,  to  prevent  the  execution  of  an 
unconstitutional  act  of  Congress,  it  can  hardly  be  doubted 
that  applications  with  that  object  would  have  been  heretofore 
addressed  to  it. 

Occasions  have  not  been  wanting. 

The  constitiitionahty  of  the  act  for  the  annexation  of  Texas 
was  vehem.ently  denied.  It  made  important  and  permanent 
changes  in  the  relative  importance  of  States  and  sections,  and 
was  by  many  supposed  to  be  pregnant  with  disastrous  results 
to  large  interests  in  particular  States.  But  no  one  seems  to 
have  thought  of  an  application  for  an  injunction  against  the 
execution  of  the  act  by  the  President. 

And  yet  it  is  difficult  to  perceive  upon  what  principle  the 
appHcation  now  before  us  can  be  allowed  and  similar  applica- 
tions in  that  and  other  cases  have  been  denied. 

The  fact  that  no  such  application  was  ever  before  made  in 
any  case  indicates  the  general  judgment  of  the  profession  that 
no  such  application  should  be  entertained. 

It  will  hardly  be  contended  that  Congress  [the  courts  ?]  can 
interpose,  in  any  case,  to  restrain  the  enactment  of  an  uncon- 
stitutional law;  and  yet  how  can  the  right  to  judicial  interposi- 
tion to  prevent  such  an  enactment,  when  the  purpose  is  evident 
and  the  execution  of  that  purpose  certain,  be  distinguished,  in 
principle,  from  the  right  to  such  interposition  against  the  execu- 
tion of  such  a  law  by  the  President  ? 

The  Congress  is  the  legislative  department  of  the  govern- 
ment; the  President  is  the  executive  department.  Neither  can 
be  restrained  in  its  action  by  the  judicial  department;  though 
the  acts  of  both,  when  performed,  are,  in  proper  cases,  subject 
to  its  cognizance. 


550    RECONSTRUCTION  OF  THE  UNION 

The  impropriety  of  such  interference  will  be  clearly  seen 
upon  consideration  of  its  possible  consequences. 

Suppose  the  bill  filed  and  the  injunction  prayed  for  allowed. 
If  the  President  refuse  obedience,  it  is  needless  to  observe  that 
the  court  is  without  power  to  enforce  its  process.  If,  on  the 
other  hand,  the  President  comphes  with  the  order  of  the  court 
and  refuses  to  execute  the  acts  of  Congress,  is  it  not  clear  that 
a  collision  may  occur  between  the  executive  and  legislative 
departments  of  the  government?  May  not  the  House  of 
Representatives  impeach  the  President  for  such  refusal  ?  And 
in  that  case  could  this  court  interfere,  in  behalf  of  the  Presi- 
dent, thus  endangered  by  compliance  with  its  mandate,  and 
restrain  by  injunction  the  Senate  of  the  United  States  from 
sitting  as  a  court  of  impeachment  ?  Would  the  strange  spectacle 
be  offered  to  the  pubHc  world  of  an  attempt  by  this  court  to 
arrest  proceedings  in  that  court  ? 

These  questions  answer  themselves. 

It  is  true  that  a  State  may  file  an  original  bill  in  this  court. 
And  it  may  be  true,  in  some  cases,  that  such  a  bill  may  be  filed 
against  the  United  States.  But  we  are  fully  satisfied  that  this 
court  has  no  jurisdiction  of  a  bill  to  enjoin  the  President  in  the 
performance  of  his  official  duties;  and  that  no  such  bill  ought  to 
be  received  by  us.  .  .  . 

184.  State  of  Texas  v.  White}      ' 
The  Chief  Justice  delivered  the  opinion  of  the  Court: 

These  new  relations  imposed  new  duties  upon  the  United 
States.  The  first  was  that  of  suppressing  the  rebeUion.  The 
next  was  that  of  re-establishing  the  broken  relations  of  the 
State  with  the  Union.  The  first  of  these  duties  having  been 
performed,  the  next  necessarily  engaged  the  attention  of  the 
National  government. 

The  authority  for  the  performance  of  the  first  had  been 
found  in  the  power  to  suppress  insurrection  and  carry  on  war; 
for  the  performance  of  the  second,  authority  was  derived  from 
^  Supreme  Court  of  the  United  States,  1868.   7  Wallace,  700. 


JUDICIARY  AND  RECONSTRUCTION    551 

the  obligation  of  the  United  States  to  guarantee  to  every  State 
in  the  Union  a  republican  form  of  government.  The  latter, 
indeed,  in  the  case  of  a  rebelHon  which  involves  the  govern- 
ment of  a  State,  and  for  the  time  excludes  the  National  author- 
ity from  its  limits,  seems  to  be  a  necessary  complement  to  the 
former. 

Of  this,  the  case  of  Texas  furnishes  a  striking  illustration. 
When  the  war  closed  there  was  no  government  in  the  State 
except  that  which  had  been  organized  for  the  purpose  of  wag- 
ing war  against  the  United  States.  That  government  immedi- 
ately disappeared.  The  chief  functionaries  left  the  State. 
Many  of  the  subordinate  officials  followed  their  example. 
Legal  responsibilities  were  annulled  or  greatly  impaired.  It 
was  inevitable  that  great  confusion  should  prevail.  If  order 
was  maintained,  it  was  where  the  good  sense  and  virtue  of  the 
citizens  gave  support  to  local  acting  magistrates,  or  supplied 
more  directly  the  needful  restraints. 

A  great  social  change  increased  the  difficulty  of  the  situa- 
tion. .  .  , 

The  new  freemen  necessarily  became  part  of  the  people,  and 
the  people  still  constituted  the  State;  for  States  like  individuals 
retain  their  identity,  though  changed  to  some  extent  in  their 
constituent  elements.  And  it  was  the  State,  thus  constituted, 
which  was  now  entitled  to  the  benefit  of  the  constitutional 
guarantee.  .  .  . 

But  the  power  to  carry  into  effect  the  clause  of  guarantee  is 
primarily  a  legislative  power,  and  resides  in  Congress.  ''Under 
the  fourth  article  of  the  constitution,  it  rests  with  Congress 
to  decide  what  government  is  the  estabhshed  one  in  a  State. 
For,  as  the  United  States  guarantee  to  each  State  a  republican 
government.  Congress  must  necessarily  decide  what  govern- 
ment is  established  in  the  State,  before  it  can  determine  whether 
it  is  republican  or  not."  .  .  . 

The  action  of  the  President  must,  therefore,  be  considered  as 
provisional,  and,  in  that  light,  it  seems  to  have  been  regarded 
by  Congress.  It  was  taken  after  the  term  of  the  38th  Congress 
had  expired.   The  39th  Congress,  which  assembled  in  Decem- 


552    RECONSTRUCTION  OF  THE  UNION 

ber,  1865,  followed  by  the  40th  Congress,  which  met  in  March, 
1867,  proceeded,  after  long  dehberation,  to  adopt  various 
measures  for  reorganization  and  restoration.  These  measures 
were  embodied  in  proposed  amendments  to  the  constitution, 
and  in  the  acts  known  as  the  Reconstruction  Acts,  which  have 
been  so  far  carried  into  effect,  that  a  majority  of  the  States 
which  were  engaged  in  the  rebellion  have  been  restored  to  their 
constitutional  relations,  under  forms  of  government,  adjudged 
to  be  repubUcan  by  Congress,  through  the  admission  of  their 
"Senators  and  Representatives  into  the  councils  of  the  Union." 

Nothing  in  the  case  before  us  requires  the  court  to  pronounce 
judgment  upon  the  constitutionaHty  of  any  particular  provision 
of  these  acts. 

But  it  is  important  to  observe  that  these  acts  themselves 
show  that  the  governments,  which  had  been  estabUshed  and 
had  been  in  actual  operation  under  executive  direction,  were 
recognized  by  Congress  as  provisional,  as  existing,  and  as  cap- 
able of  continuance. 

By  the  act  of  March  2,  1867,  the  first  of  the  series,  these  gov- 
ernments were,  indeed,  pronounced  illegal  and  were  subjected 
to  miUtary  control,  and  were  declared  to  be  provisional  only; 
and  by  the  supplementary  act  of  July  19,  1867,  the  third  of  the 
series,  it  was  further  declared  that  it  was  the  true  intent  and 
meaning  of  the  act  of  March  2,  that  the  governments  then 
existing  were  not  legal  State  governments,  and  if  continued, 
were  to  be  continued  subject  to  the  mihtary  commanders  of  the 
respective  districts  and  to  the  paramount  authority  of  Congress. 
We  do  not  inquire  here  into  the  constitutionality  of  this  legis- 
lation so  far  as  it  relates  to  military  authority,  or  to  the  para- 
mount authority  of  Congress.  It  suffices  to  say,  that  the  terms 
of  the  acts  necessarily  imply  recognition  of  actually  existing 
governments;  and  that  in  point  of  fact,  the  governments  thus 
recognized,  in  some  important  respects,  still  exist.  .... 


CHAPTER  LX 

THE   IMPEACHMENT   OF   PRESIDENT  JOHNSON 

The  struggle  between  the  President  and  Congress  culminated  in  the 
adoption  of  articles  of  impeachment  by  the  House.  The  real  significance 
of  the  trial,  obscured  by  the  technical  subtleties  of  the  managers  for  the 
House  and  by  the  lengthy  arguments  of  the  counsel  for  the  defense, 
appears  most  clearly  in  the  opinions  rendered  by  individual  Senators. 
The  essential  points  at  issue  are  stated  temperately  by  Senator  Grimes. 
Senators  Wilson  and  Fessenden  represent  opposing  views  of  the  nature 
of  impeachable  offenses. 

185.  Opinion  of  Senator  Wilson.'^ 

High  misdemeanors  may  or  may  not  be  violations  of  the 
laws.  High  misdemeanors  may,  in  my  judgment,  be  misbe- 
havior in  office  detrimental  to  the  interests  of  the  nation, 
dangerous  to  the  rights  of  the  people,  or  dishonoring  to  the 
government.  I  entertain  the  conviction  that  the  framers  of  the 
Constitution  intended  to  impose  the  high  duty  upon  the  House 
of  Representatives  to  arraign  the  Chief  Magistrate  for  such 
misbehavior  in  office  as  injured,  dishonored,  or  endangered  the 
nation,  and  to  impose  upon  the  Senate  the  duty  of  trying,  con- 
victing, and  removing  the  Chief  Magistrate  proved  guilty  of 
such  misbehavior.  Believing  this  to  be  the  intention  of  the 
framers  of  the  Constitution  and  its  true  meaning;  belie\ing 
that  the  power  should  be  exercised  whenever  the  security  of 
the  country  and  the  hberties  of  the  people  imperatively  de- 
mand it;  and  believing  by  the  evidence  adduced  to  prove  the 
charges  of  violating  the  Constitution  and  the  tenure-of-office 
act,  and  by  the  confessed  and  justified  acts  of  the  President, 
that  he  is  guilty  of  high  misdemeanors,  I  unhesitatingly  vote 
for  his  conviction  and  removal  from  his  high  office. 

The  President  is  charged  by  the  House  of  Representatives 
with  violating  the  Constitution  and  the  tenure-of-office  act 
in  removing  Mr.  Stanton  from  the  office  of  Secretary  of  War, 
^  Trial  of  Andrew  Johnson,  m,  215-16. 


554    RECONSTRUCTION  OF  THE  UNION 

and  in  appointing  Adjutant  General  Thomas  Secretary  of  War 
ad  interim.  The  removal  of  Mr.  Stanton  and  the  appointment 
of  Adjutant  General  Thomas,  and  the  violation  of  the  tenure- 
of-office  act,  if  Mr.  Stanton  be  within  that  act,  stand  confessed 
and  justified  in  the  answer  of  the  President  to  the  charges  of 
the  House  of  Representatives.  The  answer  of  the  President, 
without  any  other  evidence,  is  to  my  mind  conclusive  evidence 
of  his  guilt.  Upon  his  answer,  confessions,  assumptions,  and 
justifications  I  have  no  hesitation  in  recording  my  vote  of 
"guilty."  The  assumptions  of  power  put  forth  by  the  Presi- 
dent in  his  defence  cannot  but  startle  and  alarm  all  men  who 
would  maintain  the  just  powers  of  all  branches  of  the  govern- 
ment. Had  the  President  inadvertently  violated  the  Constitu- 
tion.and  the  laws;  had  he  pleaded  in  justification  misconstruc- 
tion of  the  Constitution  and  the  laws,  I  might  have  hesitated 
to  vote  for  his  conviction.  But  he  claims  the  right  to  remove 
civil  ofiicers  and  appoint  others,  ad  interim,  during  the  session 
of  the  Senate.  If  that  claim  of  power  is  admitted  by  a  vote  of 
acquittal,  the  President  can  remove  during  the  session  of  the 
Senate  tens  of  thousands  of  civil  officers  with  their  millions  of 
compensation,  and  appoint  his  own  creatures  to  fill  their 
places  without  the  advice  and  consent  of  the  Senate,  and  thus 
nullify  that  provision  of  the  Constitution  that  empowers  the 
Senate  to  give  its  advice  and  consent  to  appointments. 

Not  content  with  this  assumption  of  power,  the  President 
claims  the  right  to  pronounce  a  law  of  Congress  unconstitu- 
tional, to  refuse  to  execute  it,  although  he  is  sworn  to  do  so, 
and  to  openly  violate  it  with  a  view  of  testing  its  constitution- 
ality in  the  courts,  although  no  means  may  exist  for  months 
or  years  to  come,  to  test  the  constitutionality  of  the  law  so 
violated  in  the  judicial  tribunals  of  the  country.  The  President 
claims  and  has  exercised  the  right  to  declare  Congress  an  un- 
constitutional body,  incapable  of  enacting  laws  or  of  proposing 
amendments  to  the  Constitution;  to  hold  the  laws  in  abeyance; 
to  refuse  to  execute  them,  and  to  defiantly  violate  them  in 
order  to  test  their  constitutionality.  These  are  the  positions 
assumed  by  Andrew  Johnson.  These  assumptions,  if  admitted, 


IMPEACHMENT  OF  PRESIDENT       555 

radically  change  the  character  of  our  government.  If  they  are 
sustained  by  a  verdict  of  acquittal,  the  President  ceases  to  be 
the  servant  of  the  law,  and  becomes  the  master  of  the  people; 
and  a  law-non-executing  power,  a  law-defying  power,  a  law- 
breaking  power  is  created  within  the  government.  Instead  of 
an  executive  bound  to  the  faithful  execution  of  the  laws  of 
Congress,  the  nation  has  an  executive  bound  only  to  execute 
the  laws  according  to  his  own  caprices,  whims,  and  sovereign 
pleasure.  Never  can  I  assent,  by  a  vote  of  acquittal,  to  execu- 
tive assumptions  so  unconstitutional,  so  subversive  of  the 
government,  so  revolutionary  in  their  scope  and  tendency. 
These  assumptions  will  introduce  into  our  constitutional  sys- 
tem, into  our  government  of  nicely  adjusted  parts,  derange- 
ment, disorganization,  and  anarchy.  .  .  . 

186.  Opinion  of  Senator  Fessenden} 

The  power  of  impeachment  is  conferred  by  the  Constitution 
in  terms  so  general  as  to  occasion  great  diversity  of  opinion 
with  regard  to  the  nature  of  offences  which  may  be  held  to  con- 
stitute crimes  or  misdemeanors  within  its  intent  and  meaning. 
Some  contend,  and  with  great  force  of  argument,  both  upon 
principle  and  authority,  that  only  such  crimes  and  misde- 
meanors are  intended  as  are  subject  to  indictment  and  punish- 
ment as  a  violation  of  some  known  law.  Others  contend  that 
anything  is  a  crime  or  misdemeanor  within  the  meaning  of  the 
Constitution  which  the  appointed  judges  choose  to  consider 
so;  and  they  argue  that  the  provision  was  left  indefinite  from 
the  necessity  of  the  case,  as  offences  of  public  officers,  injurious 
to  the  public  interest,  and  for  which  the  offender  ought  to  be 
removed,  cannot  be  accurately  defined  beforehand;  that  the 
remedy  provided  by  impeachment  is  of  a  poHtical  character, 
and  designed  for  the  protection  of  the  public  against  unfaithful 
and  corrupt  officials.  Granting,  for  the  sake  of  the  argument, 
that  this  latter  construction  is  the  true  one,  it  must  be  conceded 
that  the  power  thus  conferred  might  be  liable  to  ver>'  great 
abuse,  especially  in  times  of  high  party  excitement,  when  the 
*  Trial  of  Andrew  Johnson,  in,  29-30. 


556    RECONSTRUCTION  OF  THE  UNION 

passions  of  the  people  are  inflamed  against  a  perverse  and 
obnoxious  public  officer.  If  so  it  is  a  power  to  be  exercised  with 
extreme  caution,  when  you  once  get  beyond  the  line  of  specific 
criminal  offences.  The  tenure  of  public  offices,  except  those  of 
judges,  is  so  limited  in  this  country,  and  the  ability  to  change 
them  by  popular  suffrage  so  great,  that  it  would  seem  hardly 
worth  while  to  resort  to  so  harsh  a  remedy,  except  in  extreme 
cases,  and  then  only  upon  clear  and  unquestionable  grounds. 
In  the  case  of  an  elective  Chief  Magistrate  of  a  great  and 
powerful  people,  li^dng  under  a  \^Titten  Constitution,  there  is 
m.uch  more  at  stake  in  such  a  proceeding  than  the  fate  of  the 
individual.  The  office  of  President  is  one  of  the  great  coordi- 
nate branches  of  the  government,  having  its  defined  powers, 
privileges,  and  duties ;  as  essential  to  the  very  framework  of  the 
government  as  any  other,  and  to  be  touched  with  as  careful  a 
hand.  Anything  which  conduces  to  weaken  its  hold  upon  the 
respect  of  the  people,  to  break  down  the  barriers  which  sur- 
round it,  to  make  it  the  mere  sport  of  temporary  majorities, 
tends  to  the  great  injury  of  our  government,  and  inflicts  a  wound 
upon  constitutional  liberty.  It  is  evident,  then,  as  it  seems  lo 
me,  that  the  offence  for  which  a  Chief  INIagistrate  is  removed 
from  office,  and  the  power  intrusted  to  him  by  the  people  trans- 
ferred to  other  hands,  and  especially  where  the  hands  which 
receive  it  are  to  be  the  same  which  take  it  from  him,  should  be  of 
such  a  character  as  to  commend  itself  at  once  to  the  minds  of  all 
right  thinking  men  as,  beyond  all  question,  an  adequate  cause.'. 
It  should  be  free  from  the  taint  of  party;  leave  no  reasonable 
ground  of  suspicion  upon  the  motives  of  those  who  inflict  the 
penalty,  and  address  itself  to  the  country  and  the  ci\'ilized 
world  as  a  measure  justly  called  for  by  the  gravity  of  the  crime, 
and  the  necessity  of  its  punishment.  Anything  less  than  this, 
especially  where  the  offence  is  one  not  defined  by  any  law,  would, 
in  my  judgment,  not  be  justified  by  a  calm  and  considerate  pub- 
lic opinion  as  a  cause  for  removal  of  a  President  of  the  United 
States.  And  its  inevitable  tendency  would  be  to  shake  the  faith 
of  the  friends  of  constitutional  Hberty  in  the  permanency  of  our 
freeinstitutions,andthecapacityofmanforself-government 


IMPEACHMENT  OF  PRESIDENT       557 

187.  Opinion  of  Senator  Grimes} 

The  first  question  presented  is,  is^Mr._Stanton's  case  within 
the  provisions  of  the  tenure-of-oflace  act  of  March  2,  1867? 

Certainly  it  is  not  within  the  body  of  the  first  section.  .  .  . 

The  plain  intent  of  the  proviso  to  the  first  section  is  to  pre- 
scribe a  tenure  for  the  oflSce  of  Secretary  dift'erent  from  the 
tenure  fixed  for  other  civil  officers.  This  is  known  to  have  been 
done  on  account  of  the  marked  difference  between  the  heads  of 
departments  and  all  other  officers,  which  made  it  desirable  and 
necessary  for  the  public  service  that  the  heads  of  departments 
should  go  out  of  office  with  the  President  by  whom  they  were 
appointed.  It  would,  indeed,  be  a  strange  result  of  the  law  if 
those  Secretaries  appointed  by  Mr.  Lincoln  should  hold  by 
the  tenure  fixed  by  the  act  for  ordinary  civil  officers,  while  all 
the  other  Secretaries  should  hold  by  a  different  tenure;  that 
those  appointed  by  the  present  and  all  future  Presidents 
should  hold  only  during  the  term  of  the  President  by  whom 
they  may  have  been  appointed,  while  those  not  appointed  by 
him  should  hold  indefinitely;  and  this  under  a.  law  which 
undertakes  to  define  the  tenure  of  all  the  Secretaries  who  are 
to  hold  their  offices  under  the  law.  I  cannot  come  to  that  con- 
clusion. My  opinion  is,  that  if  Mr.  Stanton's  tenure  of  office 
is  prescribed  by  this  law  at  all,  it  is  prescribed  to  him  as  Sec- 
retary of  War,  under  and  by  force  of  the  proviso  to  the  first 
section ;  and  if  his  case  is  not  included  in  that  proviso  it  is  not 
included  in  the  law  at  all. 

It  is  clear  to  my  mind  that  the  proviso  does  not  include,  and 
was  not  intended  to  include,  Mr.  Stanton's  case.  It  is  not 
possible  to  apply  to  his  case  the  language  of  the  proviso  unless 
we  suppose  it  to  have  been  intended  to  legislate  him  out  of 
office;  a  conclusion,  I  consider,  wholly  inadmissible.  He  was 
appointed  by  President  Lincoln  during  his  first  term  of  office. 
He  cannot  hereafter  go  out  of  office  at  the  end  of  the  term  of 
the  President  by  whom  he  was  appointed.  That  term  was 
ended  before  the  law  was  passed.  The  proviso,  therefore, 
^  Trial  of  Andrew  Johnson,  m,  331-38  passim. 


558    RECONSTRUCTION  OF  THE  UNION 

cannot  have  been  intended  to  make  a  rule  for  his  case;  and  it  is 
shown  that  it  was  not  intended.  This  was  plainly  declared  in 
debate  by  the  conference  committee,  both  in  the  Senate  and  in 
the  House  of  Representatives,  when  the  pro\dso  was  introduced 
and  its  effect  explained.  The  meaning  and  effect  of  the  proviso 
were  then  explained  and  understood  to  be  that  the  only  tenure 
of  the  Secretaries  proA-ided  for  by  this  law  was  a  tenure  to  end 
with  the  term  of  ser\'ice  of  the  President  by  whom  they  were 
appointed,  and  as  this  new  tenure  could  not  include  Mr.  Stan- 
ton's case,  it  was  here  expHcitly  declared  that  it  did  not  include 
it.  .  .  . 

I  come  now  to  the  question  of  intent.  Admitting  that  the 
President  had  no  power  under  the  law  to  issue  the  order  to 
remove  Mr.  Stanton  and  appoint  General  Thomas  >Secretary 
for  the  Department  of  War  ad  interim,  did  he  issue  those  orders 
with  a  manifest  intent  to  violate  the  laws  and  "the  Constitu- 
tion of  the  United  States,"  as  charged  in  the  articles,  or  did  he 
issue  them,  as  he  says  he  did,  with  a  \'iew  to  have  the  constitu- 
tionality of  the  tenure-of-office  act  judicially  decided? 

It  is  apparent  to  my  mind  that  the  President  thoroughly 
believed  the  tenure-of-ofhce  act  to  be  unconstitutional  and 
void.  He  was  so  ad\'ised  by  every  member  of  his  cabinet  when 
the  bill  was  presented  to  him  for  his  approval  in  February, 
1867.  The  managers  on  the  part  of  the  House  of  Representa- 
tives have  put  before  us  and  made  legal  evidence  in  this  case 
the  message  of  the  President  to  the  Senate,  dated  December 
12,  1867.  In  that  message  the  President  declared  — 

That  tenure-of-ofl5ce  law  did  not  pass  without  notice.  Like  other 
acts  it  was  sent  to  the  President  for  approval.  As  is  my  custom,  I 
submitted  its  consideration  to  my  cabinet  for  their  advice  upon 
the  question,  whether  I  should  approve  it  or  not.  It  was  a  grave 
question  of  constitutional  law,  in  which  I  would  of  course  rely  most 
upon  the  opinion  of  the  Attorney  General  and  of  Mr.  Stanton,  who 
had  once  been  Attorney  General.  Every  member  of  my  cabinet 
advised  me  that  the  proposed  law  was  unconstitutional.  All  spoke 
without  doubt  or  reservation,  but  Mr.  Stanton's  condemnation  of 
the  law  was  the  most  elaborate  and  emphatic.   He  referred  to  the 


IMPEACHMENT  OF  PRESIDENT       559 

constitutional  provisions,  the  debates  in  Congress  —  especially  to 
the  speech  of  Mr.  Buchanan  when  a  senator  —  to  the  decisions  of 
the  Supreme  Court,  and  to  the  usage  from  the  beginning  of  the 
government  through  every  successive  administration,  all  concurring 
to  establish  the  right  of  removal  as  vested  by  the  Constitution  in 
the  President.  To  all  these  he  added  the  weight  of  his  own  deliber- 
ate judgment,  and  advised  me  that  it  was  my  duty  to  defend  the 
power  of  the  President  from  usurpation  and  to  veto  the  law.  .  .  , 

Here,  then,  we  have  the  President  advised  by  all  of  the 
members  of  his  cabinet,  including  the  Attorney  General,  whose 
duty  it  is  made  by  law  to  give  legal  advice  to  him,  including 
the  Secretary  for  the  Department  of  War,  also  an  eminent 
lawyer  and  an  Attorney  General  of  the  United  States  under  a 
former  administration,  that  the  act  of  March  2,  1867,  was 
unconstitutional  and  void,  that  the  three  members  of  the 
cabinet  holding  over  from  Mr.  Lincoln's  administration  were 
not  included  within  its  provisions,  and  that  it  was  desirable 
that  upon  some  proper  case  a  judicial  determination  on  the 
constitutionality  of  the  law  should  be  obtained. 

Now,  when  it  is  remembered  that,  according  to  Chief  Justice 
Marshall,  the  act  of  1789,  creating  the  Department  of  War, 
was  intentionally  framed  "so  as  to  clearly  imply  the  power  of 
removal  to  be  solely  in  the  President,"  and  that  "as  the  bill 
passed  into  a  law,  it  has  ever  been  considered  as  a  full  expression 
of  the  sense  of  the  legislature  on  this  important  part  of  the 
American  Constitution;"  when  it  is  remembered  that  this 
construction  has  been  acquiesced  in  and  acted  on  by  every 
President  from  Washington  to  Johnson,  by  the  Supreme  Court, 
by  every  Congress  of  the  United  States  from  the  first  that  exei 
assembled  under  the  Constitution  down  to  the  39th;  and  w^hen 
it  is  remembered  that  all  of  the  President's  cabinet  and  the 
most  eminent  counsellors  within  his  reach  advised  him  that 
the  preceding  Congresses,  the  past  Presidents  and  statesmen, 
and  Story  and  Kent  and  Thompson  and  Marshall  w^ere  right 
in  their  construction  of  the  Constitution,  and  the  39th  Congress 
wrong,  is  it  strange  that  he  should  doubt  or  dispute  the  consti- 
tutionality of  the  tenure-of-office  act.? 


56o    RECONSTRUCTION  OF  THE  UNION 

But  all  this  is  aside  from  the  question  whether  Mr.  Stanton's 
case  is  included  in  the  provisions  of  that  act.  If  it  was  not,  as  I 
think  it  clearly  was  not,  then  the  question  of  intent  is  not  in 
issue,  for  he  did  no  unlawful  act.  If  it  was  included,  then  I  ask 
whether,  in  view  of  those  facts,  the  President's  guilty  intent 
to  do  an  unlawful  act  "shines  with  such  a  clear  and  certain 
Hght"  as  to  justify,  to  require  us  to  pronounce  him  guilty  of 
a  high  constitutional  crime  or  misdemeanor?  .  .  . 

It  is  not  denied,  I  think,  that  the  constitutional  vaHdity  of 
this  law  could  not  be  tested  before  the  courts  unless  a  case  was 
made  and  presented  to  them.  No  such  case  could  be  made 
unless  the  President  made  a  removal.  That  act  of  his  would 
necessarily  be  the  basis  on  which  the  case  would  rest.  He  is 
sworn  to  "preser\^e,  protect,  and  defend  the  Constitution  of 
the  United  States."  He  must  defend  it  against  all  encroach- 
ments from  whatever  quarter.  A  question  arose  between  the 
legislative  and  executive  departments  as  to  their  relative 
powers  in  the  matter  of  removals  and  appointments  to  office. 
That  question  was,  Does  the  Constitution  confer  on  the 
President  the  power  which  the  tenure-of-office  act  seeks  to 
take  away?  It  was  a  question  manifestly  of  construction  and 
interpretation.  The  Constitution  has  pro\aded  a  common 
arbiter  in  such  cases  of  controversy  —  the  Supreme  Court  of 
the  United  States.  Before  that  tribunal  can  take  jurisdiction 
a  removal  must  be  made.  The  President  attempted  to  give  the 
court  jurisdiction  in  that  way.  For  doing  so  he  is  impeached, 
and  for  the  reason,  as  the  managers  say,  that  — 

He  has  no  authority  under  the  Constitution,  or  by  any  law,  to 
enter  into  any  schemes  or  plans  for  the  purpose  of  testing  the  validity 
of  the  laws  of  the  country,  either  judicially  or  otherwise. 

If  this  be  true,  then  if  the  two  houses  of  Congress  should 
pass  by  a  two-thirds  vote  over  the  President's  veto  an  act 
depriving  the  President  of  the  right  to  exercise  the  pardoning 
power,  and  he  should  exercise  that  power  nevertheless,  or  if 
he  should  exercise  it  only  in  a  single  case  for  the  purpose  of 
testing  the  constitutionality  of  the  law,  he  would  be  guilty  of 


IMPEACHMENT  OF  PRESIDENT       561 

a  high  crime  and  misdemeanor  and  impeachable  accordingly. 
The  managers'  theory  establishes  at  once  the  complete  su- 
premacy of  Congress  over  the  other  branches  of  government. 
I  can  give  my  assent  to  no  such  doctrine. 

This  was  a  punitive  statute.  It  was  directed  against  the 
President  alone.  It  interfered  with  the  prerogatives  of  his 
department  as  recognized  from  the  foundation  of  the  govern- 
ment. It  wrested  from  him  powers  which,  according  to  the 
legislative  and  judicial  construction  of  80  years,  had  been 
bestowed  upon  him  by  the  Constitution  itself.  In  my  opinion 
it  was  not  only  proper,  but  it  was  his  duty  to  cause  the  dis- 
puted question  to  be  determined  in  the  manner  and  by  the 
tribunal  established  for  such  purposes.  This  government  can 
only  be  preserved  and  the  liberty  of  the  people  maintained  by 
preserving  intact  the  co-ordinate  branches  of  it  —  legislative, 
executive,  judicial  —  alike.  I  am  no  convert  to  any  doctrine 
of  the  omnipotence  of  Congress.  ... 


CHAPTER  LXI 

JUDICIAL     INTERPRETATION     OF    THE    FOURTEENTH 
AMENDMENT 

In  these  notable  cases,  the  Supreme  Court  was  called  upon  to  give  an 
authoritative  interpretation  of  the  war  amendments.  Of  the  nationalizing 
tendency  of  the  war,  the  Court  was  well  aware;  but  it  confessed  to  a  great 
reluctance  to  obliterate  the  main  features  of  the  federal  system.  Believing 
that  the  Court  had  "always  held  with  a  steady  and  even  hand  the  bal- 
ance between  State  and  Federal  power,"  five  of  the  nine  judges  agreed  in 
giving  a  restrictive  interpretation  to  the  Fourteenth  Amendment.  The 
pertinent  facts  in  the  cases  are  stated  in  the  opinion  of  the  Court. 

1 88.  Slaughter-House  Cases} 

Mr.  Justice  Miller  delivered  the  opinion  of  the  Court:  — 

These  cases  are  brought  here  by  writs  of  error  to  the  Supreme 
Court  of  the  State  of  Louisiana.  They  arise  out  of  the  efforts  of 
the  butchers  of  New  Orleans  to  resist  the  Crescent  City  Live- 
stock Landing  and  Slaughter-House  Company  in  the  exercise 
of  certain  powers  conferred  by  the  charter  which  created  it, 
and  which  was  granted  by  the  legislature  of  that  State.  .  .  . 

The  records  show  that  the  plaintijffs  in  error  relied  upon,  and 
asserted  throughout  the  entire  course  of  the  litigation  in  the 
State  courts,  that  the  grant  of  privileges  in  the  charter  of 
defendant,  which  they  were  contesting,  was  a  violation  of  the 
most  important  provisions  of  the  thirteenth  and  fourteenth 
articles  of  amendment  of  the  Constitution  of  the  United 
States.  The  jurisdiction  and  the  duty  of  this  court  to  revie\^ 
the  judgment  of  the  State  court  on  those  questions  is  clear  and 
imperative. 

The  statute  thus  assailed  as  unconstitutional  was  passed 
March  8,  1869,  and  is  entitled,  "An  act  to  protect  the  health 
of  the  city  of  New  Orleans,  to  locate  the  stock-landings  and 
slaughter-houses,  and  to  incorporate  the  Crescent  City  Live- 
stock Landing  and  Slaughter-House  Company." 

/  Supreme  Court  of  the  United  States,  1873.  16  Wallace,  36. 


INTERPRETATION  OF  XIV  AMENDMENT    563 

The  first  section  forbids  the  landing  or  slaughtering  of 
animals  whose  flesh  is  intended  for  food,  within  the  city  of  New 
Orleans  and  other  parishes  and  boundaries  named  and  defined, 
or  the  keeping  or  establishing  any  slaughter-houses  or  abattoirs 
within  those  Hmits,  except  by  the  corporation  thereby  created, 
which  is  also  lunited  to  certain  places  afterwards  mentioned. 
Suitable  penalties  are  enacted  for  violations  of  this  prohibition. 

The  second  section  designates  the  corporators,  gives  the 
name  to  the  corporation,  and  confers  on  it  the  usual  corporate 
powers. 

The  third  and  fourth  sections  authorize  the  company  to 
establish  and  erect  within  certain  territorial  limits,  therein 
defined,  one  or  more  stock-yards,  stock-landings,  and  slaughter- 
houses, and  impose  upon  it  the  duty  of  erecting,  on  or  before 
the  first  day  of  June,  1869,  one  grand  slaughter-house  of  suffi- 
cient capacity  for  slaughtering  five  hundred  animals  per  day. 

It  declares  that  the  company,  after  it  shall  have  prepared 
all  the  necessary  buildings,  yards,  and  other  conveniences  for 
that  purpose,  shall  have  the  sole  and  exclusive  privilege  of 
conducting  and  carrying  on  the  live-stock  landing  and  slaugh- 
ter-house business  within  the  limits  and  privilege  granted  by 
the  act,  and  that  all  such  animals  shall  be  landed  at  the  stock- 
landings  and  slaughtered  at  the  slaughter-houses  of  the  com- 
pany, and  nowhere  else.  Penalties  are  enacted  for  infractions 
of  this  provision,  and  prices  fixed  for  the  maximum  charges  of 
the  company  for  each  steamboat  and  for  each  animal  landed. 

Section  five  orders  the  closing  up  of  all  other  stock-landings 
and  slaughter-houses  after  the  first  day  of  June,  in  the  parishes 
of  Orleans,  Jefferson^  and  St.  Bernard,  and  makes  it  the  duty 
of  the  company  to  permit  any  person  to  slaughter  animals  in 
their  slaughter-houses  under  a  heavy  penalty  for  each  refusal. 
Another  section  fixes  a  limit  to  the  charges  to  be  made  by  the 
company  for  each  animal  so  slaughtered  in  their  building,  and 
another  provides  for  an  inspection  of  all  animals  intended  to 
be  so  slaughtered,  by  an  ofiicer  appointed  by  the  governor  of 
the  State  for  that  purpose.  .  .  , 
The  power  here  exercised  by  the  legislature  of  Louisiana  is, 


564    RECONSTRUCTION  OF  THE  UNION 

in  its  essential  nature,  one  which  has  been,  up  to  the  present 
period  in  the  constitutional  history  of  this  country,  always 
conceded  to  belong  to  the  States,  however  it  may  now  be  ques- 
tioned in  some  of  its  details. 

''Unwholesome  trades,  slaughter-houses,  operations  offens- 
ive to  the  senses,  the  deposit  of  powder,  the  apphcation  of 
steam-power  to  propel  cars,  the  building  with  combustible 
materials,  and  the  burial  of  the  dead,  may  all,"  says  Chancellor 
Kent,  "be  interdicted  by  law,  in  the  midst  of  dense  masses  of 
population,  on  the  general  and  rational  principle,  that  every 
person  ought  so  to  use  his  property  as  not  to  injure  his  neigh- 
bors; and  that  private  interests  must  be  made  subservient  to 
the  general  interests  of  the  community."  This  is  called  the 
police  power;  and  it  is  declared  by  Chief  Justice  Shaw,  that  it 
is  much  easier  to  perceive  and  realize  the  existence  and  sources 
of  it  than  to  mark  its  boundaries,  or  prescribe  limits  to  its 
exercise. 

This  power  is,  and  must  be  from  its  ver>'  nature,  incapable  of 
any  very  exact  definition  or  limitation.  Upon  it  depends  the, 
security  of  social  order,  the  Ufe  and  health  of  the  citizen,  the 
comfort  of  an  existence  in  a  thickly  populated  community,  the 
enjoyment  of  private  and  social  life,  and  the  beneficial  use  of 
property.  .  .  . 

The  regulation  of  the  place  and  manner  of  conducting  the 
slaughtering  of  animals,  and  the  business  of  butchering  within 
a  city,  and  the  insp>ection  of  the  animals  to  be  killed  for  meat, 
and  of  the  meat  afterwards,  are  among  the  most  necessary  and 
frequent  exercises  of  this  power.  It  is  not,  therefore,  needed 
that  we  should  seek  for  a  comprehensive  definition,  but  rather 
look  for  the  proper  source  of  its  exercise.  .  .  . 

It  cannot  be  denied  that  the  statute  under  consideration  is 
aptly  framed  to  remove  from  the  more  densely  populated  part 
of  the  city  the  noxious  slaughter-houses,  and  large  and  offensive 
collections  of  animals  necessarily  incident  to  the  slaughtering 
business  of  a  large  city,  and  to  locate  them  where  the  conven- 
ience, health,  and  comfort  of  the  people  require  they  shall  be 
located.  And  it  must  be  conceded  that  the  means  adopted  by 


INTERPRETATION  OF  XIV  AMENDMENT    565 

the  act  for  this  purpose  are  appropriate,  are  stringent,  and 
eflfectual.  .  .  . 

Unless,  therefore,  it  can  be  maintained  that  the  exclusive 
privilege  granted  by  this  charter  to  the  corporation  is  beyond 
the  power  of  the  legislature  of  Louisiana,  there  can  be  no  just 
exception  to  the  validity  of  the  statute.  And  in  this  respect  we 
are  not  able  to  see  that  these  privileges  are  especially  odious 
or  objectionable.  The  duty  imposed  as  a  consideration  for  the 
privilege  is  well  defined,  and  its  enforcement  well  guarded. 
The  prices  or  charges  to  be  made  by  the  company  are  limited 
by  the  statute,  and  we  are  not  advised  that  they  are  on  the 
whole  exorbitant  or  unjust.  .  .  . 

It  may,  therefore,  be  considered  as  estabhshed,  that  the 
authority  of  the  legislature  of  Louisiana  to  pass  the  present 
statute  is  ample,  unless  some  restraint  in  the  exercise  of  that 
power  be  found  in  the  constitution  of  that  State  or  in  the  amend- 
ments to  the  Constitution  of  the  United  States,  adopted  since 
the  date  of  the  decisions  we  have  already  cited. 

If  any  such  restraint  is  supposed  to  exist  in  the  constitution 
of  the  State,  the  Supreme  Court  of  Louisiana  having  neces- 
sarily passed  on  that  question,  it  would  not  be  open  to  review 
in  this  court. 

The  plaintiffs  in  error  accepting  this  issue,  allege  that  the 
statute  is  a  violation  of  the  Constitution  of  the  United  States 
in  these  several  particulars :  — 

That  it  creates  an  involuntary  servitude  forbidden  by  the 
thirteenth  article  of  amendment; 

That  it  abridges  the  privileges  and  immunities  of  citizens 
of  the  United  States; 

That  it  denies  to  the  plaintiffs  the  equal  protection  of  the 
laws;  and, 

That  it  deprives  them  of  their  property  without  due  process 
of  law;  contrary  to  the  provisions  of  the  first  section  of  the 
fourteenth  article  of  amendment. 

This  court  is  thus  called  upon  for  the  first  time  to  give  con- 
struction to  these  articles.  .  .  . 


566    RECOXSTRUCTIOX  OF  THE  L'XION 

Twelve  articles  of  amendment  were  added  to  the  Federal 
Constitution  soon  after  the  original  organization  of  the  govern- 
ment imder  it  in  1789.  Of  these  all  but  the  last  were  adopted 
so  soon  aftens-ards  as  to  justify  the  statement  that  they  were 
practically  contemporaneous  with  the  adoption  of  the  original ; 
and  the  tw'elfth,  adopted  in  eighteen  hundred  and  three,  was 
so  nearly  so  as  to  have  become,  like  all  the  others,  historical 
and  of  another  age.  But  within  the  last  eight  years  three 
other  articles  of  amendment  of  vast  importance  have  been 
added  by  the  voice  of  the  people  to  that  now  venerable  instru- 
ment. .  .  . 

We  repeat,  then,  in  the  Ught  of  this  recapitulation  of  events, 
almost  too  recent  to  be  called  history,  but  which  are  familiar 
to  us  all;  and  on  the  most  casual  examination  of  the  language 
of  these  amendments,  no  one  can  fail  to  be  impressed  with  the 
one  pervading  purpose  found  in  them  all.  King  at  the  founda- 
tion of  each,  and  without  which  none  of  them  would  have  been 
even  suggested ;  we  mean  the  freedom  of  the  slave  race,  the 
security  and  firm  estabhshment  of  that  freedom,  and  the  pro- 
tection of  the  newly-made  freeman  and  citizen  from  the  op>- 
pressions  of  those  who  had  formerly  exercised  unHmited 
dominion  over  him.  .  .  . 

The  first  section  of  the  fourteenth  article,  to  which  our 
attention  is  more  specially  invited,  opens  with  a  definition  of 
citizenship  —  not  only  citizenship  of  the  United  States,  but 
citizenship  of  the  States.  No  such  definition  was  pre\dously 
found  in  the  Constitution,  nor  had  any  attempt  been  made  to 
define  it  by  act  of  Congress.  It  had  been  the  occasion  of  much 
discussion  in  the  courts,  by  the  executive  departments,  and  in 
the  public  journals.  It  had  been  said  by  eminent  judges  that 
no  man  was  a  citizen  of  the  United  States  except  as  he  was  a 
citizen  of  one  of  the  States  composing  the  Union.  Those, 
therefore,  who  had  been  born  and  resided  always  in  the  District 
of  Columbia  or  in  the  Territories,  though  within  the  United 
States,  were  not  citizens.  Whether  this  proposition  was  sound 
or  not  had  never  been  judicially  decided.  But  it  had  been  held 
by  this  court,  in  the  celebrated  Dred  Scott  case,  only  a  few 


INTERPRETATION  OF  XIV  AAIENDMENT    567 

years  before  the  outbreak  of  the  civil  war,  that  a  man  of  African 
descent,  whether  a  slave  or  not,  was  not  and  could  not  be  a 
citizen  of  a  State  or  of  the  United  States.  .  .  . 

To  remove  this  difficulty  primarily,  and  to  establish  a  clear 
and  comprehensive  definition  of  citizenship  which  should 
declare  what  should  constitute  citizenship  of  the  United  States, 
and  also  citizenship  of  a  State,  the  first  clause  of  the  first  section 
was  framed.  .  .  . 

The  first  observation  we  have  to  make  on  this  clause  is,  that 
it  puts  at  rest  both  the  questions  which  we  stated  to  have  been 
the  subject  of  differences  of  opinion.  It  declares  that  persons 
may  be  citizens  of  the  United  States  without  regard  to  their 
citizenship  of  a  particular  State,  and  it  overturns  the  Dred 
Scott  decision  by  making  all  persons  born  witliin  the  United 
States  and  subject  to  its  jurisdiction  citizens  of  the  United 
States.  That  its  main  purpose  was  to  estabHsh  the  citizenship 
of  the  negro  can  admit  of  no  doubt.  The  phrase,  "subject  to 
its  jurisdiction"  was  intended  to  exclude  from  its  operation 
children  of  ministers,  consuls,  and  citizens  or  subjects  of  foreign 
States  born  within  the  United  States. 

The  next  observation  is  more  important  in  \dew  of  the  argu- 
ments of  counsel  in  the  present  case.  It  is,  that  the  distinction 
between  citizenship  of  the  United  States  and  citizenship  of  a 
State  is  clearly  recognized  and  estabHshed.  Not  only  may  a 
man  be  a  citizen  of  the  United  States  without  being  a  citizen 
of  a  State,  but  an  important  element  is  necessary  to  convert 
the  former  into  the  latter.  He  must  reside  within  the  State  to 
make  him  a  citizen  of  it,  but  it  is  only  necessary  that  he  should 
be  born  or  naturalized  in  the  United  States  to  be  a  citizen  of 
the  Ui^on.  .  .  . 

We  think  this  distinction  and  its  explicit  recognition  in  this 
amendment  of  great  weight  in  this  argument,  because  the  next 
paragraph  of  this  same  section,  which  is  the  one  mainly  relied 
on  by  the  plaintiffs  in  error,  speaks  only  of  privileges  and 
immunities  of  citizens  of  the  United  States,  and  does  not  speak 
of  those  of  citizens  of  the  several  States.  The  argument,  how- 
ever, in  favor  of  the  plaintiffs  rests  wholly  on  the  assumption 


568    RECONSTRUCTION  OF  THE  UNION 

that  the  citizenship  is  the  same,  and  the  privileges  and  immun- 
ities guaranteed  by  the  clause  are  the  same. 

The  language  is,  "No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States."  .  .  . 

If,  then,  there  is  a  difference  between  the  privileges  and 
immunities  belonging  to  a  citizen  of  the  United  States  as  such, 
and  those  belonging  to  the  citizen  of  the  State  as  such,  the  lat- 
ter must  rest  for  their  security  and  protection  where  they  have 
heretofore  rested;  for  they  are  not  embraced  by  this  paragraph 
of  the  amendment. 

The  first  occurrence  of  the  words  "privileges  and  immuni- 
ties" in  our  constitutional  history,  is  to  be  found  in  the  fourth 
of  the  articles  of  the  old  Confederation, 

It  declares  "that  the  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  different 
States  in  this  Union,  the  free  inhabitants  of  each  of  these 
States,  paupers,  vagabonds,  and  fugitives  from  justice  excepted, 
shall  be  entitled  to  all  the  privileges  and  immunities  of  free 
citizens  in  the  several  States ;  and  the  people  of  each  State  shall 
have  free  ingress  and  regress  to  and  from  any  other  State,  and 
shall  enjoy  therein  all  the  privileges  of  trade  and  commerce, 
subject  to  the  same  duties,  impositions,  and  restrictions  as  the 
inhabitants  thereof  respectively." 

In  the  Constitution  of  the  United  States,  which  superseded 
the  Articles  of  Confederation,  the  corresponding  provision  is 
found  in  section  two  of  the  fourth  article,  in  the  following 
words:  "The  citizens  of  each  State  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  of  the  several  States." 

There  can  be  but  Httle  question  that  the  purpose  of  both 
these  provisions  is  the  same,  and  that  the  privileges  and  im- 
m.unities  intended  are  the  same  in  each.  In  the  article  of  the 
Confederation  we  have  some  of  these  specifically  mentioned, 
and  enough  perhaps  to  give  some  general  idea  of  the  class  of 
civil  rights  meant  by  the  phrase.  .  .  . 

The  constitutional  provision  there  alluded  to  did  not  create 
those  rights,  which  it  called  privileges  and  immunities  of  citi- 


I 

I 


INTERPRETATION  OF  XIV  AMENDMENT    569 

zens  of  the  States.  It  threw  around  them  in  that  clause  no 
security  for  the  citizen  of  the  State  in  which  they  were  claimed 
or  exercised.  Nor  did  it  profess  to  control  the  power  of  the 
State  Governments  over  the  rights  of  its  own  citizens. 

Its  sole  purpose  was  to  declare  to  the  several  States,  that 
whatever  those  rights,  as  you  grant  or  establish  them  to  your 
own  citizens,  or  as  you  limit  or  quaHfy,  or  impose  restrictions 
on  their  exercise,  the  same,  neither  more  nor  less,  shall  be  the 
measure  of  the  rights  of  citizens  of  other  States  within  your 
jurisdiction. 

It  would  be  the  vainest  show  of  learning  to  attempt  to  prove 
by  citation  of  authority,  that  up  to  the  adoption  of  the  recent 
amendments,  no  claim  01  pretense  was  set  up  that  those  rights 
depended  on  the  Federal  Government  for  their  existence  or 
protection,  beyond  the  very  few  express  Hmitations  which  the 
Federal  Constitution  imposed  upon  the  States  —  such,  for 
instance,  as  the  prohibition  against  ex  post  facto  laws,  bills  of 
attainder,  and  laws  impairing  the  obligation  of  contracts.  But 
with  the  exception  of  these  and  a  few  other  restrictions,  the 
entire  domain  of  the  privileges  and  immunities  of  citizens  of 
the  States,  as  above  defined,  lay  within  the  constitutional  and 
legislative  power  of  the  States,  and  without  that  of  the  Federal 
Government.  Was  it  the  purpose  of  the  fourteenth  amend- 
ment, by  the  simple  declaration  that  no  State  should  make  or 
enforce  any  law  which  shall  abridge  the  privileges  and  immuni- 
ties of  citizens  of  the  United  States,  to  transfer  the  security 
and  protection  of  all  the  civil  rights  which  we  have  mentioned, 
from  the  States  to  the  Federal  Government?  And  where  it  is 
declared  that  Congress  shall  have  the  power  to  enforce  that 
article,  was  it  intended  to  bring  within  the  power  of  Congress 
the  entire  domain  of  civil  rights  heretofore  belonging  exclusively 
to  the  States?  ... 

We  are  convinced  that  no  such  results  were  intended  by  the 
Congress  which  proposed  these  amendments,  nor  by  the  legis- 
latures of  the  States  which  ratified  them. 

Having  shown  that  the  privileges  and  immunities  reHed  on 
in  the  argunient  arc  those  which  belong  to  citizens  of  the  States 


570    RECONSTRUCTION  OF  THE  UNION 

as  such,  and  that  they  are  left  to  the  State  Governments  for 
security  and  protection,  and  not  by  this  article  placed  under 
the  special  care  of  the  Federal  Government,  we  may  hold  our- 
selves excused  from  defining  the  privileges  and  immunities  of 
citizens  of  the  United  States  which  no  State  can  abridge,  until 
some  case  involving  those  privileges  may  make  it  necessary 
to  do  so.  .  .  . 

The  argument  has  not  been  much  pressed  in  these  cases  that 
the  defendant's  charter  deprives  the  plaintiffs  of  their  property 
without  due  process  of  law,  or  that  it  denies  to  them  the  equal 
protection  of  the  law.  The  first  of  these  paragraphs  has  been 
in  the  Constitution  since  the  adoption  of  the  fifth  amendment, 
as  a  restraint  upon  the  Federal  power.  It  is  also  to  be  found  in 
some  form  of  expression  in  the  constitutions  of  nearly  all  the 
States,  as  a  restraint  upon  the  power  of  the  States.  This  law, 
then,  has  practically  been  the  same  as  it  now  is  during  the 
existence  of  the  government,  except  so  far  as  the  present  amend- 
ment may  place  the  restraining  power  over  the  States  in  this 
matter  in  the  hands  of  the  Federal  Government. 

We  are  not  without  judicial  interpretation,  therefore,  both 
State  and  National,  of  the  meaning  of  this  clause.  And  it  is 
sufficient  to  say  that  under  no  construction  of  that  provision 
that  we  have  ever  seen,  or  any  that  we  deem  admissible,  can 
the  restraint  imposed  by  the  State  of  Louisiana  upon  the  exer- 
cise of  their  trade  by  the  butchers  of  New  Orleans  be  held  to  be 
a  deprivation  of  property  within  the  meaning  of  that  provision. 

"Nor  shall  any  State  deny  to  any  person  \vithin  its  jurisdic- 
tion the  equal  protection  of  the  laws." 

In  the  light  of  the  history  of  these  amendments,  and  the  per- 
vading purpose  of  them,  which  we  have  already  discussed,  it  is 
not  difficult  to  give  a  meaning  to  this  clause.  The  existence  of 
laws  in  the  States  where  the  newly  emancipated  negroes  resided, 
which  discriminated  with  gross  injustice  and  hardship  against 
them  as  a  class,  was  the  exil  to  be  remedied  by  this  clause,  and 
by  it  such  laws  are  forbidden. 

If,  however,  the  States  did  not  conform  their  laws  to  its 
requirements,  then  by  the  fifth  section  of  the  article  of  amend- 


INTERPRETATION  OF  XIV  AMENDMENT    571 

ment  Congress  was  authorized  to  enforce  it  by  suitable  legis- 
lation. We  doubt  very  much  whether  any  action  of  a  State 
not  directed  by  way  of  discrimination  against  the  negroes  as  a 
class,  or  on  account  of  their  race,  will  ever  be  held  to  come 
within  the  purview  of  this  provision.  It  is  so  clearly  a  provision 
for  that  race  and  that  emergency,  that  a  strong  case  would  be 
necessary  for  its  application  to  any  other.  But  as  it  is  a  State 
that  is  to  be  dealt  with,  and  not  alone  the  vaKdity  of  its  laws, 
we  may  safely  leave  that  matter  until  Congress  shall  have 
exercised  its  power,  or  some  case  of  State  oppression,  by  denial 
of  equal  justice  in  its  courts,  shall  have  claimed  a  decision  at 
our  hands.  We  find  no  such  case  in  the  one  before  us,  and  do 
not  deem  it  necessary  to  go  over  the  argument  again,  as  it  may 
have  relation  to  this  particular  clause  of  the  amendment.  .  .  . 
The  judgments  oj  the  Supreme  Court  of  Louisiana  in  these  cases 
are  affirmed. 


CHAPTER  LXII 

THE  FIFTEENTH  AMENDMENT 

"The  groups  of  men  favoring  a  suffrage  amendment  of  some  kind  were, 
therefore,  the  politicians,  who  aimed  at  congressional  control  over 
Southern  elections,  the  nationalists,  who  desired  a  strong  central  govern- 
ment, and  the  universal  suffragists,  or  humanitarians,  as  they  may  be 
called,  who  were  laboring  to  base  the  enjo>'Tnent  of  political  rights  upon 
no  distinction  less  comprehensive  than  humanity  itself.  Over  against  all 
three  of  these,  and  opposed  to  a  suffrage  amendment  of  any  kind,  were  the 
*,>Ai/  local  autonomists,  proud  of  local  tradition  and  jealous  of  national  inter- 
ference in  local  affairs."*  When  finally  formulated,  therefore,  the  amend- 
ment was  a  resultant  of  these  various  forces.  Two  extracts  have  been 
made  from  the  debates  in  Congress  to  indicate  the  main  argument  of  the 
nationalists  and  the  counter-argument  of  the  local  autonomists. 

189.  Representative  Shellaharger  on  the  Proposed  Fijteenth 
Amendment} 

Now,  Mr.  Speaker,  I  will  not  proceed  further  to  discuss  this 
proposed  substitute  submitted  by  myself,  but  will  beg  such 
attention  to  it  as  members  may  be  incKned  to  give  it  before 
we  come  to  the  vote.  I  did  want  to  call  attention  to  the 
reasons  why  we  should  now  submit  some  amendment  securing 
to  all  the  citizens  of  the  Republic  a  just  participation  in  the 
election  of  its  rulers.  I  regret  that  my  time  will  not  at  all  permit 
me  to  do  this  in  any  adequate  way.  One  of  these  reasons  is  to 
be  found  in  the  fact  that  the  proposition  in  itself  is  so  eminently 
right  that  it  cannot  fail  to  commend  itself  to  the  approval,  it 
seems  to  me,  of  all  right-minded  men.  Right,  I  mean  —  in 
regard  to  its  relations  to  the  Constitution.  The  framers  of  the 
Constitution  thought  that  they  had  so  made  that  instrument 
that  they  deemed  the  pro\dsions  in  regard  to  who  should  elect 
the  Federal  rulers  were  substantially  unalterable  by  the 
States.   They  also  deemed  this  regulation  of  the  franchise,  by 

^  Mathews,  Legislative  and  Judicial  History  of  the  Fifteenth  Amendment, 
22. 
'  Congressional  Globe,  40  Cong.,  3  Sess.,  App.,  98.  January  29,  1869. 


THE  FIFTEENTH  AMENDA/[ENT       573 

which  the  rulers  and  the  laws  of  the  Republic  were  to  be  made, 
one  absolutely  fundamental  and  going  into  the  very  essence 
of  the  Government,  and  one  which  could  not  be  left  to  the 
States.  This  is  not  only  one  of  those  self-evident  things  about 
which  there  can  be  no  debate,  but  it  is  so  expressed,  over  and 
over,  by  those  who  made  the  Constitution.  Mr.  Hamilton 
says,  (see  Federalist,  403 :) 

"  The  definition  of  the  right  of  suffrage  is  very  justly  regarded 
as  a  fundamental  article  of  repubHcan  government.  To  have 
submitted  this  to  the  legislative  discretion  of  the  States  would 
have  been  improper,  because  it  is  fundamental,  and  for  the 
additional  reason  that  it  would  have  rendered  too  dependent 
on  the  State  governments  that  branch  of  the  Federal  Govern- 
ment which  ought  to  be  dependent  on  the  people  alone." 

He  also  says,  speaking  of  the  clause  making  electors  the 
same  as  for  the  most  numerous  branch  of  the  State  Legisla- 
tures, that  — 

"It  will  be  safe  for  the  United  States,  because  being  fixed  by 
the  State  constitutions  it  is  not  alterable  by  the  State  govern- 
ments." 

But  in  speaking  of  the  declaration  by  Mr.  Hamilton  that 
the  Constitution's  definition  of  the  qualifications  of  Federal 
electors  was  "not  alterable  by  the  State  governments,"  Mr. 
Story  says  (i  Story  on  Constitution,  section  586)  "the  provis- 
ion has  not  in  fact,  and  may  not  have,  all  the  security  against 
alteration  so  confidently  affirmed."  Thus  it  is  seen,  first,  that 
the  makers  of  the  Constitution  did  regard  this  power  of  defin- 
ing the  qualifications  of  Federal  electors  fundamental,  and  one 
which  the  Convention  could  not  properly  leave  to  the  States ; 
second,  that  they  thought  that  as  they  had  arranged  it  in  the 
Constitution  it  was  substantially  "unalterable  by  the  States; " 
and  third,  that  their  expectations  as  to  this  last  have  not  been 
historically  realized.  This  vital  power  of  Government  has 
turned  out,  in  practice,  to  be  one  not  only  "alterable  by  the 
States,"  but  one  which  the  States  have  so  used  as  that  in  many 
of  them  the  masses  of  the  people  who  are  loyal  to  their  country 
and  who  have  not  gone  into  a  stupendous  rebellion  for  the 


574    RECONSTRUCTION  OF  THE  UNION 

overthrow  of  the  Government,  could  and  would  to-day  be 
wholly  deprived  of  all  powers  of  government  by  the  assump- 
tion of  the  elective  franchise,  by  those  alone  who  did  engage 
in  such  rebellion.  So  startling  a  fact  must  impel  us,  by  its 
irresistible  forces,  to  go  at  once  to  the  remed>ing  of  so  grave  a 
defect  in  the  Constitution  as  that  one  is  which  leaves  to  the 
States,  only  and  supremely,  the  matter  of  making  both  the 
rulers,  and  through  these,  the  laws  of  the  RepubHc. 

Now,  I  appeal  to  the  gentlemen  upon  the  other  side  of  the 
House,  and  on  all  sides,  if  I  am  not  arguing  the  merest  truism 
when  I  say  that  that  Government  is  not  a  Government  at  all 
that  has  not  in  itself  power  to  control  the  question  as  to  who 
shall  make  the  rulers  of  that  Government,  and  which,  for  that 
very  reason,  has  not  in  itself  the  power  of  either  making  or 
executing  its  own  laws.  It  is  fundamental,  essential,  as  Mr. 
Hamilton  said  it  was.  Therefore  I  appeal  to  the  other  side  of 
the  House  when  I  say  that  the  thing  is,  in  the  philosophy  of 
government  and  in  logic,  right.  And  it  is  therefore  an  amend- 
ment, in  so  far  as  it  makes  a  Federal  definition  of  Federal  elector- 
ship, required  by  the  plainest  and  most  elementary  principles 
of  every  free  Government. 

190.  Senator  Doolittle  on  the  Proposed  Fifteenth  Amendment} 

To  define  the  precise  Hne  of  demarcation  between  the  powers 
granted  and  the  powers  reserved  is  a  most  difficult  task  —  to 
mark  in  language  the  precise  point  where  the  powers  of  the 
State  end,  and  the  power  of  the  Federal  Government  begins. 
But  there  are  some  powers  so  clearly  defined  that  no  man  in 
his  senses  can  be  mistaken.  Upon  this  great  question,  whether 
the  power  of  the  States  over  the  question  of  suffrage  is  reserved 
to  them  or  conferred  upon  the  Federal  Government  by  the 
Constitution,  no  sane  man  can  doubt.  And,  sir,  the  wisdom  of 
still  reserving  it  to  the  States  is  so  undoubted  that  even  Mr. 
Hamilton,  the  representative  of  centralization,  the  incarnation 
of  Federalism,  was  comp)elled  to  say  that  to  put  into  the  Con- 
stitution of  the  United  States  such  a  power  in  this  Government 

^  Congressional  Globe,  40  Cong.,  3  Sess.,  App.,  151.  February  6,  1869. 


THE  FIFTEENTH  AMENDMENT       575 

to  control  the  question  of  suffrage  and  elections  in  the  States 
would  be  an  engine  calculated  to  destroy  the  governments  of 
the  States. 

Mr.  President,  I  do  not  make  this  statement  at  random.  1 
have  before  me  the  language  of  Mr.  Hamilton,  in  the  fifty- 
ninth  number  of  the  Federalist,  in  which  he  puts  this  very  case : 

**  Suppose  an  article  had  been  introduced  into  the  Constitu- 
tion empowering  the  United  States  to  regulate  elections  for 
the  States,  would  any  man  have  hesitated  to  condemn  it  both 
as  an  unwarrantable  transposition  of  power  and  as  a  premedi- 
tated engine  for  the  destruction  of  the  State  governments?  " 

And  yet  your  proposed  amendment  does  all  that.  Mr. 
President,  it  says  that  suffrage  shall  not  be  restricted  on 
account  of  race,  color,  or  previous  condition,  and  that  Congress 
shall  have  power  to  enforce  it  by  appropriate  legislation.  Sir, 
the  power  to  enforce  it  of  necessity  implies  power  over  the 
election  of  the  States.  In  order  to  give  to  the  colored  man  of 
the  States  the  right  to  vote  at  the  elections  in  the  States,  to 
secure  to  his  vote  a  fair  count,  and  to  make  sure  that  if  his  vote 
be  counted  and  determine  the  result  that  the  person  elected 
shall  have  the  office,  will  draw  to  this  Government  the  power  to 
control  the  elections  themselves.  It  is  impossible  to  separate 
the  two.  But  one  authority  can  decide  the  result  of  an  election. 
It  must  be  the  State  authority  or  the  Federal  authority.  As  it 
reaches  all  elections,  if  the  Federal  authority  is  supreme,  the 
State  authority  must  succumb  in  all  elections  to  Federal 
control.  .  .  . 

Mr.  President,  I  maintain  in  the  first  place  that  the  right  to 
fix  the  qualifications  of  voters  is  essential  to  a  republican  form 
of  government,  and  that  any  State  which  has  not  the  right 
to  fix  and  determine  for  itself  who  shall  vote  and  who  shall  not 
vote  ceases  to  be  republican,  for  it  loses  the  power  to  govern 
itself.  If  Congress  can  determine  who  shall  vote  in  Indiana, 
Indiana  no  longer  governs  herself.  If  Illinois  can  determine 
who  shall  vote  in  Indiana,  it  is  not  the  people  of  Indiana  who 
govern  themselves,  but  it  is  the  people  of  Illinois  who  govern 
Indiana. 


576    RECONSTRUCTION  OF  THE  UNION 

It  cannot  be  too  often  repeated  that  it  is  absolutely  essen- 
tial to  republican  government  that  the  State  for  itself  shall 
have  the  power  to  fix  the  qualification  of  its  voters.  That 
clause  in  the  Constitution  to  which  the  honorable  Senator  from 
Massachusetts  so  often  appeals,  "that  the  United  States  shall 
guaranty  to  each  State  a  republican  form  of  government,"  is 
in  direct  conflict  with  the  proposed  amendment,  because 
republican  government  is  self-government,  and  there  can  be 
no  self-government  in  a  State  if  any  outside  State  or  any  other 
power  above  the  control  of  the  State  can  take  away  from  the 
States  the  power  to  determine  for  themselves  who  shall  exer- 
cise the  right  of  suffrage  in  the  States;  for  those  who  vote 
govern  the  State,  and  if  an  outside  power  determines  who  shall 
vote  in  a  State  that  power  governs  the  State.  This  is  a  propo- 
sition not  to  amend,  but  to  revolutionize.  It  is  not  in  the  way 
of  impro\dng  and  upholding,  but  in  the  way  of  upturning  the 
foundations  of  the  system,  and  of  destroying  the  very  spirit 
which  gives  it  fife,  the  very  ideas  of  which  it  was  born,  upon 
which  it  has  lived,  and  without  which  our  republican  institu- 
tions in  a  country  so  vast  and  so  diversified  as  ours  cannot 
survive. 

191.  The  Fifteenth  Amendment} 

ARTICLE   XV 

Section  i.  The  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States  or  by 
any  State  on  account  of  race,  color,  or  previous  condition  of 
servitude. 

Section  2.  The  Congress  shail  have  power  to  enforce  this 
article  by  appropriate  legislation. 

192.  Judicial  Interpretation  of  the  Fifteenth  Amendment. 

.  .  .  The  Fifteenth  Amendment  does  not  confer  the  right 
of  suffrage  upon  anyone.  It  prevents  the  States  or  the  United 
States,  however,  from  giving  preference,  in  this  particular,  to. 

^  This  amendment  went  into  effect  March  30,  1870.  Revised  Statutes  of 
the  United  Slates  (1878),  32. 


THE  FIFTEENTH  AMENDMENT  ^yy 

one  citizen  of  the  United  States  over  another  on  account  of 
race,  etc.  Before  its  adoption,  this  could  be  done.  .  .  .  Now 
it  cannot.  If  citizens  of  one  race  having  certain  quahficatlons 
are  permitted  to  vote,  those  of  another  having  the  same  quali- 
fications must  be.  .  .  .  It  follows  that  the  Amendment  has 
invested  the  citizen  of  the  United  States  with  a  new  constitu- 
tional right  which  is  within  the  protecting  power  of  Congress. 
That  right  is  exemption  from  discrimination  in  the  exercise  of 
the  elective  franchise  on  account  of  race,  color,  or  previous 
condition  of  servitude.  .  .  . 

The  power  of  Congress  to  legislate  at  all  upon  the  subject  of 
voting  at  State  elections  rests  upon  this  Amendment.  It  can- 
not be  contended  that  the  Amendment  confers  authority  to 
impose  penalties  for  every  wrongful  refusal  to  receive  the  vote 
of  a  qualified  elector  at  State  elections.  It  is  only  when  the 
wrongful  refusal  at  such  an  election  is  on  account  of  race, 
etc.,  that  Congress  can  interfere  and  provide  for  its  punish- 
ment.^ .  .  . 

.  .  .  The  right  of  suffrage  is  not  a  necessary  attribute  of 
national  citizenship ;  but  exemption  from  discrimination  in  the 
exercise  of  that  right  on  account  of  race,  etc.,  is.  The  right  to 
vote  in  the  States  comes  from  the  States;  but  the  right  of 
exemption  from  the  prohibited  discrimination  comes  from  the 
United  States.  The  first  has  not  been  granted  or  secured 
by  the  Constitution  of  the  United  States;  but  the  last  has 
been."  .  .  . 

*  United  States  v.  Reese.  Supreme  Court  of  the  United  States,  1876. 
92  U.  S.  214. 

2  United  States  v.  Cruikshank.  Supreme  Court  of  the  United  States, 
1876.  92  U.  S.  542. 


INDEX 


American  Insurance  Company  v.  Can- 
ter, 241-243. 

Ames,  Fisher,  on  powers  of  secretary 
of  treasury,  180-182;  on  the  com- 
mittees of  Congress,  213. 

Amnesty,  Lincoln's  proclamation  of, 

509-511- 
Annapolis  Convention,  origin  of,  93- 

96;  report  of,  96-98. 
Articles  of  Confederation,  text  of,  74- 

83;  defects  of,  84-92. 
Assemblies,   colonial,   competence  of, 

26-30;  financial  encroachments  of, 

31-33- 

Association,  the,  35-40- 

Attomey-General,  opinion  of,  on  Fu- 
gitive Slave  Law,  423-425;  on  pow- 
ers of  President  under  militia  laws, 
454-455;  on  suspension  of  writ  of 
habeas  corpus,  478-481. 

Baltimore,  Lord,  grantee  and  proprie- 
tor of  Maryland,  6-9. 

Bates,  Attorney-General,  opinion  on 
the  suspension  of  the  writ  of  habeas 
corpus,  478-481. 

Bayard,  Representative,  on  the  elec- 
tion of  1801,  214-216. 

Bernard,  Governor,  of  New  Jersey, 
commission  of,  18-22;  instructions 
to,  22-25. 

Bingham,  Representative,  on  the  pro- 
posed fourteenth  amendment,  520- 

523- 

Black,  Attorney-General,  on  the  pow- 
ers of  the  President  under  militia 
acts,  454-455- 

Blount  resolutions,  205. 

Boudinot,  Representative,  on  secre- 
tary of  treasury,  182-183. 

Buchanan,  James,  message  of,  on  se- 

.   cession,  455-459- 

Cabinet,  Jackson's  paper  read  to,  380- 

383. 
Calhoun,  John  C,  South  Carolina  ex- 


position of,  317-322;  his  report  for  a 
committee,  322-323;  his  Fort  Hill 
letter,  323-325. 

Cass,  Lewis,  letter  to  Governor  Nich- 
olson, 411-414. 

Charter,  of  Connecticut,  1-4;  of  Mary- 
land, 6-9. 

Charter  governments,  defense  of,  4-6. 

Checks  and  balances,  61-62. 

Cherokee  Nation  v.  Georgia,  310-312. 

Chisholm  v.  Georgia,  140-142. 

Clay,  Henry,  on  the  veto  power,  375- 
378. 

Clayton  compromise.  Representative 
Stephenson,    408-411. 

Coercion  of  a  State,  454-459. 

Cohens  v.  Virginia,  287-290. 

Collamer,  Senator,  on  confiscation, 
482-486. 

Commission  of  a  royal  governor,  18- 
22. 

Committee  on  Territories,  report  of 
the  Senate  (1854),  426-429. 

Compromise,  in  Federal  Convention, 
iio-iii;    Missouri,   299;    of  1850, 

426-435- 

Confederation,  Articles  of,  74-83; 
defects  of,  84-92. 

Confiscation  of  rebel  property,  482- 
490. 

Connecticut,  charter  of,  1-4;  constitu- 
tion of  1776,  63-64;  governor  of,  to 
secretary  of  war,  264-266;  resolu- 
tions of  General  Assembly  of,  266- 
267. 

Conquered-province  theory  of  Thad- 
deus  Stevens,  530-531. 

Constitution  of  Connecticut  (1776), 
63-64;  of  New  Jersey  (1776),  64- 
68;  of  Virginia  (1776),  68-73. 

Constitution,  Federal  (1787),  text  of, 
112-125;  transmission  of,  126-127; 
ratification  by  Georgia,  127-128; 
first  ten  amendments  to,  138-140; 
eleventh  amendment  to,  142;  twelfth 
amendment  to,  223-224;  thirteenth 


S8o 


INDEX 


amendment     to,     506,     fourteenth 
amendment  to,    526-527 ;   fifteenth 
amendment  to,  576. 
Constitutions,  changes  in  State,    363- 

369- 
Continental   Congress,  credentials   of 

delegates  to,  34-3S;  acts  and  re- 
solves of,  35-42. 

Contraband  of  war,  500-502. 

Convention,  Annapolis  (1786),  origin 
of,  93-96;   report  of,  96-98. 

Convention,  Federal  (1787),  origin  of, 
93-98;  call  of,  98-99;  opening  ses- 
sion of,  102-104;  credentials  of 
Maryland  delegates  to,  103;  Ran- 
dolph resolutions,  104-107;  Paterson 
resolutions,  107-109;  the  great  com- 
promise, IIO-III. 

Corporate  colony  as  a  type,  1-4. 

Crittenden,  Attorney-General,  opin- 
ion on  Fugitive  Slave  Law,  423-425. 

Curtis,  Benjamin  R.,  on  the  executive 
power,  492-495. 

Davis,  Jefferson,  on  the  dissolution  of 
the    Federal   partnership,    462-463. 

Declaration  of   Independence,  46-47. 

Declaration  of  Rights,  of  Massachu- 
setts, 48-54. 

Defense  of  charter  governments,  4-6. 

Democracy,  definition  of,  55;  basis  of 
the  new,  353-362. 

De  Tocqueville,  on  social  and  political 
equality,  353-355 ;  on  the  sovereignty 
of  the  people  in  America,  355-356. 

Dictator,  the  President  as,  474-481; 
power  of  Congress  to  create,  491- 
492. 

Doolittle,  Senator,  on  the  proposed 
fifteenth  amendment,  574-576. 

Dorr  rebellion  in  Rhode  Island,  345- 
348. 

Douglas,  Stephen  A.,  report  of,  on 
the  Nebraska  territory,  426-429; 
on  popular  sovereignty,  433-435; 
Freeport  doctrine  of,  446-447,  450- 

4SI- 
Dred  Scott  v.  Sandford,  436-445. 
Dummer,  Jeremiah,  defense  of  charter 

governments,  4-6. 

Eleventh  Amendment,  origin  of,  140- 
142;  text  of,  142. 


Emancipation  proclamation,  504-506. 
Everett,  Senator,  on  the  legislation  of 

1850,  430-433- 
Executive  power,  Benjamin  R.  Curtis 

on  the,  492-495. 
Ex  parte  John  Merrj'man,  474-478. 
Ex  parte  Milligan,  495-499. 
Exposition,  South  Carolina,  317-322. 

Federalist,  on  democracies  and  repub- 
lics, 55-56;  on  the  nature  of  repre- 
sentation, 56-58;  on  the  separation 
of  powers,  59-61;  on  checks  and 
balances,  61-62;  on  the  defects  of 
the  Confederacy,  84-92;  on  the  fed- 
eral convention,  99-101;  on  the  na- 
ture of  the  Constitution,  128-134. 

Fessenden,  Senator,  on  the  impeach- 
ment of  President  Johnson,  555-556. 

Fifteenth  Amendment,  origin  of,  572- 
576;  text  of,  576;  interpretation  of, 

576-577. 

First  Continental  Congress,  credentials 
of  delegates  to,  34-35;  acts  and  re- 
solves of,  35-40. 

Forfeited-rights  theory,  532-535. 

Forfeiture  of  slaves,  502-503. 

Fourteenth  Amendment,  origin  of, 
518-526;  text  of,  526-527;  interpre- 
tation of,  562-571. 

Franklin,  Benjamin,  on  the  proprie- 
tary governor,  30-31. 

Freeport  doctrine,  of  Stephen  A.  Doug- 
las, 446-447. 

Fugitive  Slave  Act  of  1850,  opinion  of 
attorney-general  on,  423-425. 

Fugitive  slaves,  rendition  of,  416-425; 
as  contraband,  500-502. 

Gallatin,  Albert,  on  reports  of  the 
treasury,  186-187;  on  the  treaty- 
making  power,  198-201. 

Georgia,  resolution  of  the  legislature  of, 
on  Indian  lands,  308-309;  on  the 
case  of  Tassels,  309-310. 

Gerr>',  Representative,  on  powers  of 
secretary  of  treasur>',  183-184. 

Gibbons  v.  Ogden,  291-298. 

Gooch,  Governor  of  Virginia,  report  of, 
14-17. 

Governor,  proprietary,  Franklin  on,  30- 
31;  royal,  commission  of,  18-22;  in- 
structions of,  22-25;  negative  voice 


INDEX 


581 


of.  ",  IS,  20,  23,  24;  stale,  as  the  peo- 
ple's representatives,  365-366;  veto 
power  of,  363-365;  appointment  of 
provisional,  512-515. 

Grimes,  Senator,  on  the  impeachment 
of  President  Johnson,   557-561. 

Griswold,  Representative,  on  powers 
of  President  in  acquired  territory, 
243-244. 

Habeas  corpus,  writ  of,  and  Fugitive 
Slave  Act,  423-425;  suspension  of, 
468-469,  474-481. 

Hamilton,  Alexander,  joint  author  of 
Federalist,  56-58;  on  defects  of  the 
Confederation,  84-92;  author  of  the 
Annapolis  address,  96-98;  on  the 
treasury  department,  178,  185;  his 
instructions  to  Governor  Lee,  193- 
196. 

House  of  Representatives,  address  of, 
154-156;  and  the  first  veto,  157-159; 
and  heads  of  departments,  184-187; 
and  the  treaty-making  power,  197- 
205;  opening  of  a  session,  206-208; 
rules  of,  208-212;  committees  of, 
209,  210,  213. 

Howard,  Senator,  on  the  proposed  four- 
teenth amendment,  523-526. 

Impeachment  of  President  Johnson, 
Wilson  on,  553-555;  Fessenden  on, 
555-556;  Grimes  on,  5S7-56i. 

Instructions  to  a  royal  governor,  22- 
25- 

Jackson,  Andrew,  proclamation  of,  to 
the  people  of  South  Carolina,  329- 
334,  335-337;  bank  veto  of,  370- 
375 ;  paper  read  to  Cabinet  by,  380- 
383;  his  Protest,  384-389. 

Jefferson,  Thomas,  on  the  first  veto 
message,  157;  on  communications 
with  Congress,  159;  on  the  relation 
of  heads  of  departments  to  Congress, 
184-186;  on  the  constitutionality  of 
a  national  bank,  225-228;  on  the 
purchase  of  Louisiana,  237;  on  the 
federal  judiciary,  252-253. 

Johnson,  Andrew,  on  the  restoration 
of  the  Union,  512-517;  and  the  Re- 
construction Acts,  538-546;  im- 
peachment of,  553-561- 


Joint  Committee  on  Reconstruction, 
report  of,  518-520,  532-535. 

Judiciary,  Federal,  power  of,  to  de- 
clare acts  void,  246-253,  273-281; 
Jefferson  on,  252-253;  and  Pennsyl- 
vania, 254-262;  appellate  jurisdic- 
tion of,  282-290;  and  constitutional 
interpretation,  291-298;  political 
power  of,  366-367;  Stale,  popular 
election  of,  366-367. 

Kansas-Nebraska  Act,   principles  of, 
^  426-435. 
Kent,  Chancellor  on  universal  suffrage, 

356-360. 
Kentucky  resolutions,  of    1798,    228- 
235;  of  1799,  235-236. 

Legislatures,  colonial,  competence  of, 
26-30;  encroachments  of,  31-33; 
organization  of,  3,  lo-ii,  14-15,  19- 
20,  22-24;  State,  basis  of  representa- 
tion in,  64-65,  68-69,  356-362;  ex- 
cessive legislation  of,  363-366. 

Lincoln,  Abraham,  debate  of,  with 
Douglas,  446-453;  inaugural  address 
of,  464-466;  call  to  arms  of,  466; 
his  proclamation  of  blockade,  467; 
his  first  message,  468-471;  his  pro- 
clamation of  war,  471-472;  his  in- 
structions as  to  slaves  to  army  com- 
manders, 500-502;  on  forfeiture  of 
slaves,  502-503;  his  proclamation  of 
emancipation,  504-506;  his  proclam- 
ation of  amnesty,  509-511;  his  last 
speech,  412. 

Livingston,  Representative,  on  the  Jay 
Treaty,  197-198. 

Locke,  John,  on  the  dissolution  of  gov- 
ernments, 43-44. 

Louisiana  Treaty,  scope  of,  237-241. 

Luther  v.  Borden,  348-352. 

Maclay,  William,  on  the  inauguration 
of  Washington,  151-154;  on  the  de- 
bates in  the  Senate,  162-167. 

Madison,  James,  on  the  Annapolis 
Convention,  93-96;  on  the  Federal 
Convention,  99-101 ;  on  the  nature  of 
the  Constitution ,  1 28- 1 34 ;  on  amend- 
ing the  Constitution,  135-138;  on 
the  appointing  and  removing  power, 
169-177. 


582 


INDEX 


Marbury  v.  Madison,  246-252. 

Martin  v.  Hunter's  Lessee,  282-287. 

Martin  v.  Mott,  271-272. 

Maryland,  charter  of,  6-9;  credentials 
of  delegates  of,  to  Federal  Conven- 
tion, 103. 

Massachusetts,  Declaration  of  Rights 
of,  48-54;  governor  of,  to  the  Secre- 
tary of  War,  268;  opinion  of  judges 
of,  on  militia  question,   269-271. 

M'CuUoch  V.  Maryland,  273-281. 

McLane,  Representative,  on  the  ad- 
mission  of   Missouri,   302-305. 

Mississippi  v.  Andrew  Johnson,  547- 

550- 
Missouri,  admission  of,   299-307. 
Montesquieu,    on    the    separation    of 

powers,  59-61. 

Negative  voice,  of  colonial  governors, 
II,  15,  20,  23,  24. 

New  Hampshire,  revolution  in,  44-46. 

New  Jersey,  governor  of,  commission 
and  instructions,  18-25;  constitu- 
tion of  1776,  64-68. 

New  Orleans  v.  Winter,  245. 

New  York,  report  of  Governor  Tryon 
on,  10-13. 

North  Carolina,  appointment  of  pro- 
visional governor  of,  512-515. 

Northwest  Territory,  ordinance  for, 
143-150. 

Nullification,  in  New  England,  263- 
272;  in  Georgia,  308-316;  doctrine 
of,  317-325;  in  South  Carolina,  326- 
334. 

Ordinance  for  the  Northwest  Terri- 
tory, 143-150;  of  Nullification,  326- 
329- 
Page,  Representative,    on    powers  of 

the  secretary  of  treasury,  178-180. 
Paterson  resolutions,  107-109. 
Pennsylvania,    governors    of,    30-31; 
and    the    federal    judiciary,    254- 
262. 
Personal  Liberty  Laws,  422-423, 
Pinkney,   Senator,  on  the  admission 

of  Missouri,  305-307. 
Polk,  James  K.,  on  the  veto  power, 
378-379;  war  message  of,  393-397; 
his  message  to  Congress  (1847),  399- 


402;  his  message  to  Congress  (1848), 
404;  his  message  to  the  House 
(1848),  402-403. 

Popular  sovereignty,  doctrine  of,  426- 
435;  and  the  Dred  Scott  decision, 
446-453. 

Pownall,  Thomas,  on  the  issues  be- 
tween crown  and  colonies,  26-30; 
on  colonial  legislation,  31-33. 

President,  inauguration  of  first,  151- 
154;  speech  of,  to  House,  154-156; 
first  veto  message  of,  157-158;  and 
Senate,  160-167;  appointing  and  re- 
moving power  of,  168-177;  treaty- 
making  power  of,  162-167,  197- 
205,  237-245,  308-316,  399-402; 
election  of,  214-224;  veto  power  of, 
370-379;  directive  power  of,  380- 
392;  initiative  of,  in  foreign  policy, 
393-404;  power  of,  to  call  out  mili- 
tia, 269-272,  344-352,  454-455,  466, 
467,  468-471,  471-473;  power  of,  to 
suspend  habeas  corpus,  474-482; 
powers  of,  as  commander-in-chief, 
492-495 ;  power  of,  to  declare  martial 
law,  495-499;  power  of,  to  emanci- 
pate slaves,  503-504;  reconstruction 
policy  of,  509-5 1 7 ;  and  congressional 
reconstruction,  538-546;  and  the  en- 
forcement of  the  reconstruction  acts, 
547-550;  the  impeachment  of,  553- 
561. 

Prigg  V.  Penayslvania,  416-421. 

Prize  Cases,  472-473. 

Property  not  the  true  basis  of  repre- 
sentation, 360-362. 

Proprietor  of  Maryland,  powers  of, 
6-9. 

Protest,  of  President  Jackson,  384- 
389;  Webster  on,  389-392. 

Province,  proprietary,  as  a  t>-pe,  i ,  6- 
9;  royal,  as  a  tj-pe,  i,  10-14. 

Provisional  governor,  appointment  of, 
for  North  Carolina,  512-515. 

Proviso,  Wilmot,  405. 

Purse,  power  of  the,  in  colonial  assem- 
blies, 31-33. 

Randolph  resolutions,  104-107. 

Reconstruction,  report  of  Joint  Com- 
mittee on,  518-520,  532-535- 

Reconstruction  Acts,  President  John- 
son's vetoes  of,  538-546, 


I 


INDEX 


583 


Representation,  the  Federalist  on  the 

nature  of,  56-58. 
Representative  assemblies,  competence 

of,   26-30;  financial  encroachments 

of,  3'^-33- 

Representative  government,  princi- 
ples of,  55-63. 

Republic,  definition  of,  56. 

Rhett,  Representative,  on  slavery  in 
territories,  406-408. 

Rhode  Island,  memorial  of  Democratic 
members  of  the  legislature  of,  345- 
348. 

Rodney,  Representative,  on  the  pow- 
ers of  Congress  in  territories,  244. 

Secession,  Calhoun  on,  324-325;  Bu- 
chanan on,  455-457;  Lincoln  on, 
464-465,469-471;  causes  of,  459- 
462. 

Second  Continental  Congress,  resolu- 
tions of,  40-42;  declaration  of,  46-47. 

Secretary  of  Foreign  Affairs,  debate  on 
the  establishment  of,  168-177. 

Secretary  of  the  Treasury,  debate  on 
the  powers  of,  178-184;  Gallatin  on 
the  reports  of,  186-187. 

Sedgwick,  Representative,  on  powers 
of  the  secretary  of  the  treasury, 
180-182. 

Senate,  resolution  of,  on  the  manner  of 
receiving  the  President,  161-162; 
in  executive  session,  162-167. 

Separation  of  powers,  doctrine  of, 
59-61. 

Sere  et  al.  v.  Pitat  et  al.,  244-245. 

Shellabarger,  Representative,  on  the 
proposed  fifteenth  amendment,  572- 

574- 

Slaughter-House  Cases,  562-571. 

Slavery  in  the  Territories,  Rhett  and 
Calhoun  on,  406-408;  Stephens  on, 
408-411;  Cass  on,  411-414;  and  the 
legislation  of  1850,  414-415;  and  the 
legislation  of  1854,  426-435;  opinion 
of  the  Supreme  Court  on,  436-443; 
Lincoln  and  Douglas  on,  446-453. 

South  Carolina  Declaration  of  Causes 
of  Secession,  459-462. 

South   Carohna  Exposition,   317-322. 

South  Carolina  Ordinance  of  Nulli- 
fication, 326-329. 

Squatter  Sovereignty,  411-414, 


States  of  the  Southern  Confederacy, 
status  of,  as  viewed  by  Sumner,  528- 
530;  as  viewed  by  Stevens,  530- 
53 1 ;  as  viewed  by  the  Joint  Commit- 
tee on  Reconstruction,  532-535; 
as  viewed  by  the  Supreme  Court, 
535-537- 

State-suicide  theory  of  Charles  Sum- 
ner, 528-530. 

Stephens,  Alexander  H.,  on  the  Mexi- 
can War,  397-399;  on  the  law  of  ac- 
quired territory,  408-411. 

Stevens,  Thaddeus,  on  the  power  of 
Congress  to  create  a  dictator,  491- 
492;  conquered-province  theory  of, 
530-531- 

Suffrage,  Chancellor  Kent  on  universal, 
356-360. 

Sumner,  Charles,  on  the  rights  of  war, 
486-488;  State-suicide  theory  of, 
528-530. 

Supreme  Court,  and  acts  of  Congress 
repugnant  to  the  constitution,  246- 
252;  Jefferson  on  the  usurpation  of, 
252-253;  and  State  rights,  254-262, 
310-316;  and  the  doctrine  of  liberal 
construction,  273-281;  jurisdiction 
of,  over  State  courts,  282-290;  and 
the  constructive  interpretation  of 
the  constitution,  291-298;  and  polit- 
ical questions,  348-352;  and  con- 
gressional reconstruction,  550-552; 
and  the  executive  functions  of  the 
President,  547-550;  and  the  suspen- 
sion of  constitutional  guarantees, 
474-478;  495-499;  and  the  thirteenth 
amendment,  506-508;  and  the  four- 
teenth amendment,  562-571 ;  and  the 
fifteenth  amendment,  576-577. 

Taylor,  Representative,  on  the  admis- 
sion of  Missouri,  299-302. 

Taylor,  Senator,  on  the  proposed  twelfth 
amendment,  221-223;  on  the  Louisi- 
ana Treaty,  237-241. 

Ten  Amendments,  origin  of,  135-138; 
text  of,  138-140. 

Territorial  Acts  of  1850,414-415. 

Territory,  ordinance  for  the  North- 
west, 143-150;  power  of  Congress  to 
acquire,  237-243;  powers  of  Con- 
gress over  acquired,  243-245;  legal 
status  of  slavery  in  a,  405-415. 


584 


INDEX 


Texas  v.  White,  550-552. 

Thirteenth  Amendment,  text  of,  506; 

judicial  interpretation  of,  506-508. 
Thomas,  Representative,  on  confisca- 
tion, 488-490. 
Tracy,  Senator,  on  the  proposed  twelfth 

amendment,  219-221. 
Treaty-making  power,  162-167,   I97~ 

205,   237-245,  308-316,  399-402. 
Tryon,  report  of  Governor,  on  New 

York,  10-13. 
Tucker,  Representative,  on  powers  of 

secretary  of  treasury,  179-180. 
Twelfth  Amendment,  origin  of,  214- 

223;  text  of,  224. 
Tyler,  John,  letter  of,  to  Governor  of 

Rhode  Island,  344-345. 

United  States  v.  Cruikshank,  577. 
United  States  v.  Judge  Peters,   254- 

260. 
United  States  v.  Reese,  576-577. 

Vermont,    Personal   Liberty    Act    of, 

422-423. 
Veto  power,  of  the  President,   157- 

159,  370-379;  of  the  Governor,  363- 

Virginia,  report  of  Governor  Goochon, 
14-17;  constitution  of  1776,  68-73; 
report  of  the  legislature  of,  421-423. 

War,  Nature  of  the  (1861-1865),  464- 

473- 
War     Power,      the.      Representative 
Stephens    on,    397-399;    President 


Polk  on,  393-397,  399-404;  Attor- 
ney-General Black  on,  454-455; 
President  Buchanan  on,  455-459; 
President  Lincoln  on,  466-471;  Su- 
preme Court  on,  472-473,  495-499; 
Senator  Collamer  on,  482-486; 
Senator  Sumner  on,486-48S;  Repre- 
sentative Thomas  on,  488-490;  Re- 
presentative Stevens  on,  491-492; 
Benjamin  R.  Curtis  on,  492-495; 
Whiting  on,  503-504. 

Washington,  George,  inauguration  of, 
151-154;  his  reply  to  address,  156; 
his  first  veto,  157-158;  on  consulta- 
tions with  the  Senate,  160-161;  his 
proclamations  on  the  Whiskey  Rebel- 
lion, 188-193;  his  message  on  the 
treaty-making  power,  202-204. 

Webster,  Daniel,  reply  to  Hayne,  337- 
343;  on  President  Jackson's  Protest, 
389-392. 

Whiskey  Rebellion,  188-196. 

White,  Representative,  on  the  appoint- 
ing and  removing  power,  168-169. 

White,  Senator,  on  the  proposed  twelfth 
amendment,  216-219. 

Whiting,  Solicitor-General,  on  the  war 
powers  of  the  President,  503-504. 

Wilmot  Proviso,  405. 

Wilson,  Senator,  on  the  impeachment 
of  President  Johnson,  553-555. 

Worcester  v.  Georgia,  312-316. 

Yates,  Notes  of,  on  the  grand  commit- 
tee of  the  Federal  convention,  110- 
III. 


760  2     10 


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